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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

6539 

Vol. 75, No. 27 

Wednesday, February 10, 2010 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 625 

RIN 0578–AA52 

Healthy Forests Reserve Program 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

Natural Resources Conservation Service 

(NRCS) regulations for the Healthy 

Forests Reserve Program (HFRP). The 

Food, Conservation, and Energy Act of 

2008 (the 2008 Act) amended provisions 

of HFRP that changed the duration, 

type, and funding allocation of program 

agreements, and NRCS published a 

proposed rule for these changes on 

January 14, 2009. This final rule 

responds to the comments received on 

the proposed rule and amends NRCS 

regulations for HFRP to incorporate 

changes associated with enactment of 

the 2008 Act. 

DATES: Effective Date: This rule is 

effective February 10, 2010. 

FOR FURTHER INFORMATION CONTACT: John 

Glover, Branch Chief, Easement 

Programs Branch, Department of 

Agriculture, Natural Resources 

Conservation Service, 1400 

Independence Avenue, SW., Room 6811 

South Building, Washington, DC 20250; 

Telephone: (202) 720–5477; Fax: (202) 

720–9689. Persons with disabilities who 

require alternative means for 

communication (Braille, large print, 

audiotape, etc.) should contact the 

USDA Target Center at (202) 720–2600 

(voice and TDD). 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

The Office of Management and Budget 

(OMB) determined that this final rule is 

not a significant regulatory action and a 

benefit cost assessment has not been 

undertaken. 

Federal Crop Insurance Reform and 

Department of Agriculture 

Reorganization Act of 1994 

Pursuant to section 304 of the Federal 

Crop Insurance Reform Act of 1994 

(Pub. L. 103–354), the Department of 

Agriculture (USDA) classified this rule 

as non-major. Therefore, a risk analysis 

was not conducted. 

Regulatory Flexibility Act 

NRCS has determined that the 

Regulatory Flexibility Act is not 

applicable to this final rule because 

NRCS is not required by 5 U.S.C. 553, 

or any other provision of law, to publish 

a notice of proposed rulemaking with 

respect to the subject matter of this rule. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This final rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This final rule will 

not result in an annual effect on the 

economy of $100 million or more, a 

major increase in costs or prices, or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based companies to 

compete in domestic and export 

markets. 

Environmental Analysis 

The final rule for the HFRP amends 

the current regulation to include 

congressionally required statutory 

changes to the program as a result of the 

2008 Act, Public Law 110–246. The 

2008 Act changes the use of 30-year 

tribal contracts, allows NRCS to acquire 

permanent easements, and establishes 

limitations on the use of funds for costshare agreements and easements. The 

final rule also amends the regulation in 

response to comments received by the 

agency on the proposed rule. 

After review of the previous 

Environmental Assessment (EA) 

prepared in April 2006, it has been 

determined that the changes are minor 

and do not present significant new 

circumstances or new information 

relative to environmental issues from 

those analyzed in the 2006 EA. 

Accordingly, NRCS has determined and 

reaffirms that the previous EA and 

Finding of No Significant Impact have 

sufficiently analyzed the program’s 

potential environmental impacts and are 

inclusive of the final rule. 

Copies of the EA and the Finding of 

No Significant Impact may be obtained 

from the Healthy Forests Reserve 

Program Manager, Easements Programs 

Division, Department of Agriculture, 

Natural Resources Conservation Service, 

1400 Independence Avenue, SW., Room 

6813 South Building, Washington, DC 

20250; or electronically on the Internet 

through the NRCS homepage at: http:// 

www.nrcs.usda.gov, and by selecting 

‘‘Programs,’’ then ‘‘Healthy Forests 

Reserve Program.’’ 

Paperwork Reduction Act 

The forms that will be utilized to 

implement this regulation have 

previously been approved for use and 

OMB assigned the control number 

0578–0013. NRCS estimates that HFRP 

results in the following changes to the 

current package: 

Type of Request: New Information 

Collection Package/form/etc. 

• Increase of 26,020 respondents. 

• Increase of 23,926.3 responses. 

• Increase burden hours by 27,768.12. 

• Increase in the average time to 

execute a form in the collection: 0.229 

hours or 14.03 minutes. 

Government Paperwork Elimination Act 

NRCS is committed to compliance 

with the Government Paperwork 

Elimination Act and the Freedom to EFile Act, which require government 

agencies, in general, to provide the 

public the option of submitting 

information or transacting business 

electronically to the maximum extent 

possible. 

Civil Rights Impact Analysis 

NRCS has determined through a Civil 

Rights Impact Analysis that this final 

rule discloses no disproportionately 

adverse impacts for minorities, women, 

or persons with disabilities. The data 

presented indicates producers who are 

members of the protected groups have 

participated in NRCS conservation 

programs at parity with other producers. 

Extrapolating from historical 

participation data, it is reasonable to 


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6540 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

conclude that NRCS programs, 

including the HFRP, will continue to be 

administered in a non-discriminatory 

manner. Outreach and communication 

strategies are in place to ensure all 

producers will be provided the same 

information to allow them to make 

informed compliance decisions 

regarding the use of their lands that will 

affect their participation in USDA 

programs. The HFRP applies to all 

persons equally. Therefore, this final 

rule portends no adverse civil rights 

implications for women, minorities, and 

persons with disabilities. 

Copies of the Civil Rights Impact 

Analysis are available, and may be 

obtained from John Glover, Branch 

Chief, Easement Programs Branch, 

Natural Resources Conservation Service, 

1400 Independence Avenue, SW., Room 

6819 South Building, Washington, DC 

20250, or electronically at: http:// 

www.nrcs.usda.gov/programs/HFRP. 

Civil Justice Reform 

This final rule has been reviewed in 

accordance with Executive Order 12988, 

Civil Justice Reform. The rule is not 

retroactive and preempts State and local 

laws to the extent that such laws are 

inconsistent with this 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. 

Executive Order 13132 

This final rule has been reviewed in 

accordance with the requirements of 

Executive Order 13132, Federalism. 

NRCS has determined that this final rule 

conforms with the Federalism 

principles set forth in the Executive 

Order; would not impose any 

compliance costs on the States; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities on the 

various levels of government. Therefore, 

NRCS concludes that this final rule does 

not have Federalism implications. 

Moreover, § 625.5 of this final rule 

shows sensitivity to Federalism 

concerns by providing an option for the 

responsible official (State 

Conservationist) to obtain input from 

other agencies in proposal development. 

Unfunded Mandates Reform Act of 1995 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), 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. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

NRCS has assessed the impact of this 

final rule on Indian tribal governments 

and has concluded that this rule will 

not negatively affect communities of 

Indian tribal governments. The statutory 

changes to the HFRP as a result of the 

2008 Act created an option of offering 

30-year contracts to encourage Indian 

tribal participation in the program. 

Section 625.12 of this final rule outlines 

the procedures for enrolling land in the 

program through the 30-year contract 

option. The rule will neither impose 

substantial direct compliance costs on 

tribal governments, nor preempt tribal 

law. 

Background 

America’s forests provide a wide 

range of environmental, economic, and 

social benefits including timber, 

wilderness, minerals, recreation 

opportunities, and wildlife habitat. In 

addition, a healthy forest ecosystem 

provides habitat for endangered and 

threatened species, sustains 

biodiversity, protects watersheds, 

sequesters carbon, and helps purify the 

air. However, some forest ecosystems 

have had their ecological functions 

diminished by a number of factors 

including fragmentation, reduction in 

periodic fires, lack of proper 

management, or invasive species. 

Habitat loss has been severe enough in 

some circumstances to cause dramatic 

population declines such as in the case 

of the Ivory-billed Woodpecker. As a 

result of the pressures on forest 

ecosystems, many forests need active 

management and protection from 

development in order to sustain 

biodiversity and restore habitat for 

species that have suffered significant 

population declines. Active 

management and protection of forest 

ecosystems can also increase carbon 

sequestration and improve air quality. 

Many forest ecosystems are located on 

private lands and provide habitat for 

species that have been listed as 

endangered or threatened under section 

4 of the Endangered Species Act (ESA), 

16 U.S.C. 1533 (listed species). Congress 

enacted the HFRP, Title V of the 

Healthy Forest Restoration Act of 2003 

(Pub. L. 108–148, 16 U.S.C. 6571–6578) 

to provide financial assistance to private 

landowners to undertake projects that 

restore and enhance forest ecosystems to 

help promote the recovery of listed 

species, improve biodiversity, and 

enhance carbon sequestration. 

The Secretary of Agriculture has 

delegated authority to implement HFRP 

to the NRCS Chief. In addition, 

technical support associated with forest 

management practices may also be 

provided by the U.S. Forest Service. 

Section 501 of Title V of the Healthy 

Forests Restoration Act of 2003 (Pub. L. 

108–148) provides that the program will 

be carried out in coordination with the 

Secretary of Interior and the Secretary of 

Commerce. NRCS works closely with 

the U.S. Fish and Wildlife Service 

(FWS) and the National Marine 

Fisheries Service (NMFS) to further the 

species recovery objectives of the HFRP 

and to help make available to HFRP 

participants safe harbor or similar 

assurances and protection under ESA 

section 7(b)(4) or section 10(a)(1), 16 

U.S.C. 1536(b)(4), 1539(a)(1). 

Response to Comments and Changes to 

the Regulation 

On January 14, 2009, NRCS published 

in the Federal Register a proposed rule 

for the HFRP with a 30-day public 

comment period that ended on February 

13, 2009 (74 FR 1954). On February 18, 

2009, the agency reopened the public 

comment period for the HFRP proposed 

rule for an additional 30 days, which 

ended on March 20, 2009 (74 FR 7563). 

NRCS received 13 responses to the 

proposed rule, encompassing 

approximately 68 comments. The 

respondents included individuals 

representing eight different agricultural 

or environmental organizations, three 

private citizens, a Federal agency 

respondent, and an Indian tribe. This 

section discusses all of the relevant 

comments except for those that 

expressed agreement with provisions of 

the proposed rule. 

Purpose and Eligibility 

The statutory provisions at 16 U.S.C. 

6571 state that the purpose of HFRP is 

to restore and enhance forest ecosystems 

in order to: (1) Promote the recovery of 

threatened and endangered species, (2) 

improve biodiversity, and (3) enhance 

carbon sequestration. Under 16 U.S.C. 

6572(b), to be eligible for enrollment, 

land must be: 

(1) Private land, the enrollment of 

which will restore, enhance, or 

otherwise measurably increase the 

likelihood of recovery of a species listed 

as endangered or threatened under 16 

U.S.C. 1533; and 

(2) Private land, the enrollment of 

which will restore, enhance, or 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6541 

otherwise measurably improve the wellbeing of species that— 

(a) Are not listed as endangered or 

threatened under 16 U.S.C. 1533; but 

(b) Are candidates for such listing, 

State-listed species, or special concern 

species. 

The authorizing statute further 

provides at 16 U.S.C. 6572(c) that the 

Secretary of Agriculture will give 

additional consideration to enrollment 

of eligible land that will improve 

biological diversity and increase carbon 

sequestration. 

Comment: Three respondents 

recommended that the term native be 

used throughout the rule prior to the 

term forest ecosystem to focus attention 

on native forest ecosystems. 

Response: No changes were made to 

the regulation based on these comments. 

As stated above, the statutory language 

does not restrict HFRP to native forest 

ecosystems. There are situations in 

which the native habitat has been 

destroyed, and threatened and 

endangered species have adapted to 

using non-native habitats as their 

primary habitat. The insertion of native 

would create a barrier for participation 

in those situations. Additionally, the 

FWS and NMFS are part of the 

consultation process and can provide 

guidance and assistance on a case-bycase basis. 

Comment: One respondent 

recommended changing the definition 

of biodiversity to require organisms to 

be native to the ecological sub-region 

and ecological complex. 

Response: NRCS made no changes to 

the regulation based on this comment. 

The definition of biodiversity in the 

proposed rule is consistent with the 

definitions used in other NRCS 

programs. 

Comment: One respondent asserted 

that NRCS should clarify the extent of 

the access required in the rule to 

distinguish between public access and 

agency access. 

Response: The regulation does not 

require HFRP participants to provide 

general public access. Based on the 

comment, NRCS inserted language at 

§ 625.11 (b)(1) and § 625.12 (b)(1) to 

clarify that the right of access to the 

easement area is access for NRCS 

personnel or agency representatives. 

Priority for Enrollment 

The statutory provisions at 16 U.S.C. 

6572(f) provides the following regarding 

enrollment priority: 

(1) Species—The Secretary of 

Agriculture will give priority to the 

enrollment of land that provides the 

greatest conservation benefit to— 

(a) Primarily, species listed as 

endangered or threatened under 16 

U.S.C. 1533; and 

(b) Secondarily, species that— 

(i) Are not listed as endangered or 

threatened under 16 U.S.C. 1533; but 

(ii) Are candidates for such listing, 

State-listed species, or special concern 

species. 

(2) Cost-effectiveness—The Secretary 

of Agriculture will also consider the 

cost-effectiveness of each agreement or 

easement and associated restoration 

plans, so as to maximize the 

environmental benefits per dollar 

expended. 

Comment: Two respondents requested 

additional clarity regarding the priority 

that will be given to enrolling projects 

that benefit wildlife species not listed 

under the ESA. They suggested defining 

State-listed species in the regulation. 

Response: Based on the comments, 

the agency added a definition of Statelisted species under § 625.2. NRCS has 

defined State-listed species as ‘‘a species 

listed as threatened or endangered 

under State endangered species laws, a 

candidate for such listing, or a species 

listed in a State Wildlife Action Plan as 

a species of greatest conservation need.’’ 

Comment: Two respondents 

recommended that only native species 

be identified by the Chief for special 

consideration for funding. 

Response: No changes were made to 

the regulation based on these comments. 

While the rule allows the Chief to 

designate species of special concern, 

restricting this designation to only 

native species unnecessarily curtails the 

Chief’s discretion and could serve as a 

barrier, preventing protection in areas 

where it is needed. 

Comment: One respondent suggested 

that a dedicated amount of funds be set 

aside for family forest lands. 

Response: No changes were made to 

the regulations based on this comment 

because NRCS determined there is no 

statutory basis supporting a set-aside for 

family forest lands. A separate set-aside 

for family forest lands creates a special 

priority category. As noted above, 16 

U.S.C. 6572(f) sets forth the criteria for 

enrollment priority and no statutory 

authority exists to give priority to family 

forest lands eligible for participation in 

HFRP. 

Comment: Two respondents suggested 

that priority be given to projects based 

on the priority forest areas identified in 

the State Forest Resource Assessment 

and Strategy required by section 8002 of 

the 2008 Act. Another respondent 

suggested that attention to forest 

resources should be immediate and not 

wait for the completion of the state-wide 

assessment. 

Response: No changes were made to 

the regulation based on these comments. 

NRCS agrees that the concept of using 

the priority forest areas established by 

the report is a good concept. However, 

the report is currently underway and 

will not be complete until the end of 

fiscal year 2010. NRCS will incorporate 

guidance in policy on utilizing the 

information provided by the report once 

it is complete. 

Comment: One respondent suggested 

that significant weight should be given 

to projects that increase carbon 

sequestration. 

Response: No changes were made to 

the regulations based on this comment. 

Enhancing carbon sequestration is one 

of the purposes of the program which is 

detailed in the statute (16 U.S.C. 6571 

and 6572). Under § 625.6 of the final 

rule, one of the ranking criteria is the 

extent to which projects have the 

potential for increased capability of 

carbon sequestration. 

Comment: Two respondents asserted 

that the rule does not clearly articulate 

how cost-effectiveness will be 

estimated. Both suggested that the costeffectiveness of the restoration costshare agreement, contract, or easement 

and associated HFRP restoration plans 

be calculated by dividing the total 

expected environmental benefits by the 

total expected cost of the project. 

Response: No changes were made to 

the regulation based on these comments. 

NRCS will address this issue in policy 

to provide the maximum flexibility. The 

State Conservationist needs the 

flexibility to determine how costeffectiveness will be estimated due to 

the wide variability of environmental 

benefits and diverse habitats of land 

enrolled in the program. 

Comment: One respondent suggested 

that NRCS use separate ranking pools to 

evaluate fairly the cost-effectiveness of 

short-term and long-term agreements. 

Another respondent suggested NRCS 

compare projects with other projects of 

similar ownership and size. The 

respondent was concerned that smaller 

projects are disadvantaged when 

compared with larger projects that 

appear more cost-effective. 

Response: No changes were made to 

the regulation based on these comments. 

By policy, State Conservationists have 

the authority to create separate ranking 

pools for different types of agreements 

to ensure fair evaluation of projects. 

Comment: Several respondents 

recommended that NRCS require State 

Conservationists to work with other 

agencies and organizations when 

developing proposals. One respondent 

suggested the requirement include State 

Foresters, State Technical Committees, 


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6542 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

and State Forest Stewardship 

Committees; three respondents 

suggested the requirement include all 

local, State, and Federal agencies; and 

one respondent suggested the 

requirement include the appropriate 

State fish and wildlife agency. 

Response: No changes were made to 

the regulation based on these comments. 

NRCS cannot require that the State 

Technical Committee be consulted 

because HFRP is not a program in the 

Conservation Title. The rule provides 

flexibility to the State Conservationists 

to determine with whom it is 

appropriate to work when developing 

proposals and implementing the 

program. The suggested changes would 

require consultation and limit the 

discretion and flexibility of the State 

Conservationist. 

Comment: Two respondents suggested 

that the ranking considerations be 

developed with State fish and wildlife 

agencies and be separated into primary 

and secondary ranking considerations, 

similar to the statutory language. 

Another respondent suggested that all 

ranking considerations should be 

required to be considered. 

Response: No changes were made to 

the regulation based on these comments. 

The required ranking considerations are 

found in the final rule at § 625.6. The 

associated weighting of the ranking 

considerations is the responsibility of 

the State Conservationist. The State 

Conservationist works with cooperating 

agencies, which may include the State 

fish and wildlife agencies, to obtain 

input and advice on weighting and 

applying the ranking factors. The 

ranking structure proposed by the 

respondents would require specific 

ranking criteria to be considered 

regardless of the local conditions. The 

current structure of the regulation 

allows State Conservationists to ensure 

that local conditions are considered in 

applying the ranking criteria. 

Term of Enrollment 

Statutory provisions at 16 U.S.C. 

6572(e)(1) provide that land may be 

enrolled in the HFRP in accordance 

with: 

• A 10-year cost-share agreement, 

• A 30-year easement, or 

• A permanent easement or an 

easement for the maximum duration 

allowed under State law. 

Under the provisions of 16 U.S.C. 

6572(e)(3), the statute allows acreage 

owned by Indian tribes to be enrolled 

into the program through the use of 30- 

year contracts or 10-year cost-share 

agreements, or a combination of the two. 

Comment: NRCS specifically 

requested comments on the definition of 

‘‘acreage owned by Indian tribes’’ and 

the accompanying requirements for 30- 

year contracts at § 625.12. In response, 

NRCS received one comment. The 

respondent suggested that NRCS revise 

the definition of ‘‘acreage owned by 

Indian tribes’’ to allow Indian lands held 

in trust to be eligible for the program. 

Response: No changes were made to 

the regulation based on this comment. 

As stated in the preamble to the 

proposed rule, ‘‘The statement of 

managers (Conference Report H.R. 110– 

627 for H.R. 2419, pages 202 and 203, 

May 13, 2008) provided additional 

clarification of congressional intent by 

stating that ‘‘the managers intend that 

tribal land enrolled in the program 

should be land held in private 

ownership by a tribe or an individual 

tribal member. Tribal lands held in trust 

or reserved by the United States 

Government or restricted fee lands 

should not be enrolled in the program 

regardless of ownership.’’ The managers’ 

report language can be used to elucidate 

the meaning of the statute. Based on this 

language, NRCS interpreted the meaning 

of ‘‘acreage owned by Indian tribes’’ as 

including only land to which the title is 

held by individual Indians and Indian 

tribes, including Alaska Native 

Corporations. Lands held in Trust by the 

United States or allotted lands which 

contain restraints against alienation are 

not eligible under the definition of 

‘‘acreage owned by Indian tribes.’’ For 

purposes of clarity, NRCS removed the 

word ‘‘private’’ from this definition in 

the final rule because the inclusion of 

the word ‘‘private’’ was redundant and 

could create confusion when 

implemented. The definition of ‘‘private 

land’’ includes land that meets the 

definition of ‘‘acreage owned by Indian 

tribes.’’ NRCS also revised the definition 

of ‘‘30-year contract’’ to include the term 

‘‘acreage owned by Indian tribes’’ and to 

remove the reference to land held in 

private ownership and the reference to 

‘‘individual tribal members’’ for the 

reasons listed above. Additionally, 

NRCS removed the phrase ‘‘including 

Alaska Native Corporations’’ from the 

definition because it was repetitive. 

Comment: Two respondents suggested 

that NRCS require that direct benefits to 

the target species be realized during the 

contract period. 

Response: No changes were made to 

the regulation based on these comments. 

Section 625.4 applies to all eligible 

land, including permanent easements. 

The change suggested by the 

respondents to include ‘‘within the 

contract period’’ would be confusing 

because this section addresses all 

enrollment options, and this phrase is 

not applicable to easements. 

Additionally, there are circumstances in 

which the desired benefits may not 

occur within the contract period, though 

such benefits will likely be obtained as 

a result of HFRP financial and technical 

assistance. For example, HFRP 

assistance through a 30-year easement 

may facilitate the establishment of a 

mature hardwood forest, though the 

trees planted with HFRP assistance will 

not have reached full maturity at the 

end of the 30-year easement period. The 

respondents proposed change would 

render such land ineligible for the 

program. 

Comment: Two respondents asserted 

that NRCS should spend no less than 60 

percent of HFRP funds on permanent 

easements. Another respondent 

suggested that NRCS favor shorter term 

easements and restoration cost-share 

agreements over permanent easements. 

Response: No changes were made to 

the regulation based on these comments 

because the statutory requirements 

determine the allocation of funds. The 

original HFRP statutory language 

required that ‘‘the extent to which each 

enrollment method is used will be based 

on the approximate proportion of owner 

interest expressed in that method in 

comparison to the other methods.’’ 

However, the 2008 Act amended the 

HFRP statute to include language 

specifying that 40 percent of program 

expenditures in any fiscal year be for 

restoration cost-share agreement 

enrollment and 60 percent of program 

expenditures in any fiscal year be for 

easement enrollment. The 2008 Act 

allows re-allocation if funds are not 

obligated by April 1 of the fiscal year in 

which the funds were made available. 

Comment: One respondent asserted 

that NRCS should allow States the 

flexibility to allocate funds according to 

local needs under the re-pooling 

provision. 

Response: No changes were made to 

the regulation based on this comment. 

The preamble of the proposed rule 

stated that ‘‘NRCS proposes to manage 

this process at the national level to 

ensure that the allocation of funds meets 

the statutory requirements.’’ The agency 

will manage the re-pooling of funds at 

National Headquarters to ensure that the 

statutory requirements are met. 

Comment: Two respondents suggested 

that NRCS limit the allocation of 

program resources to States that have 

developed proposals likely to result in 

the most significant and cost-effective 

benefits to the forest ecosystems and 

species. 

Response: No changes were made to 

the regulation based on these comments. 

The respondents’ suggestion limits 

HFRP enrollment to a select number of 


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States. NRCS does not believe Congress 

intended to limit the implementation of 

the program in this manner. The signup process, detailed in § 625.5(a), is 

designed to target funding to the most 

significant and cost-effective proposals. 

Restoration Plans 

As a condition of HFRP participation, 

a landowner must agree to the 

implementation of a HFRP restoration 

plan. The purpose of the restoration 

plan is to restore, protect, enhance, 

maintain, and manage the habitat 

conditions necessary to increase the 

likelihood of recovery of listed species 

under the ESA, or measurably improve 

the well-being of species that are not 

listed but are candidates for such listing, 

State-listed species, or species identified 

by the Chief for special consideration 

for funding. 

Under the provisions of 16 U.S.C. 

6572, NRCS is to carry out the HFRP in 

coordination with FWS and NMFS. The 

provisions of § 625.13(c), which concern 

the HFRP restoration plan development, 

specify that NRCS, in coordination with 

the FWS, will determine the 

conservation practices and measures for 

the restoration plan. 

Comment: Two respondents suggested 

including other agencies in the 

development of the restoration plan. 

Response: No changes were made to 

the regulation based on these comments. 

The rule allows the State 

Conservationists to confer with FWS 

and NMFS in developing the restoration 

plan. The State Conservationists have 

the authority to consult with other 

agencies in the development of the 

restoration plan as necessary. 

Comment: Three respondents 

suggested that NRCS reword § 625.13(c) 

to require that carbon sequestration 

management promote diverse and high 

quality native forest ecosystems to 

accomplish the goals of the restoration 

plan. 

Response: Based on the comments, 

NRCS inserted the language suggested 

by the respondents in § 625.13(c). NRCS 

agrees with the respondents and is 

concerned that the most effective plants 

for sequestering carbon may be nonnative species that may not be 

appropriate for maintaining habitat. 

NRCS agrees that for carbon 

sequestration purposes, the plants 

should be required to be native to the 

environment in which they are being 

planted. 

Comment: One respondent 

recommended that restoration plans be 

tailored to help landowners adapt their 

management strategies in a changing 

climate. 

Response: No changes were made to 

the regulation based on this comment. 

The planning process includes selecting 

plants that are widely adapted to 

tolerate changes in climate. The 

restoration plan may be modified by the 

parties to address changing 

circumstances, including changes to 

facilitate climate adaptation. 

Comment: Two respondents suggested 

that the language in § 625.14 is 

inconsistent because the first sentence 

of the section says that modifications 

may be approved if they do not modify 

or void provisions of the easement, and 

later in the section the regulation says 

that modifications may require 

execution of an amended easement. 

Response: Section 625.14 discusses 

modifications to the HFRP restoration 

plan; it is not discussing modification to 

an HFRP easement. There is no statutory 

authority for HFRP easements to be 

modified. In order for a restoration plan 

to be modified, the modification must 

meet HFRP program objectives and must 

result in equal or greater wildlife 

benefits and ecological and economic 

values to the United States. In order to 

avoid confusion regarding the 

modification of an HFRP restoration 

plan, NRCS has inserted the phrase ‘‘to 

the restoration plan’’ and removed the 

word ‘‘easement’’ from § 625.14. 

Comment: One respondent suggested 

that any modification to an HFRP 

restoration plan should require 

agreement from the landowner, FWS, 

NMFS, or the State fish and wildlife 

agency. 

Response: No changes were made to 

the regulation based on this comment. 

The final rule at § 625.14 affirms that 

NRCS will coordinate with the 

landowner, FWS, and NMFS to 

determine if a modification to the 

restoration plan is justified. 

Cost-Share Payments 

Comment: One respondent asserted 

that NRCS should use actual costs rather 

than average costs for determining costshare assistance reimbursement rates. 

The HFRP statutory language allows for 

NRCS to reimburse a percentage of 

either the actual cost or the average cost 

of approved practices. The respondent 

asserted that average costs may be far 

lower than the actual cost and therefore, 

make full program implementation less 

likely where landowners do not receive 

reimbursement for their full expenses. 

Response: No changes were made to 

the regulation based on this comment. 

Calculating actual costs would 

significantly increase the administrative 

workload and reduce the amount of 

financial assistance available to HFRP 

participants. Average costs, as 

determined on a regional basis, will be 

used to ensure that the average costs are 

close to actual costs in that area. 

However, for purposes of clarity, 

NRCS revised § 625.3(d) and § 625.13(c) 

to establish that the State 

Conservationist will develop the list of 

eligible restoration practices, payment 

rates, and cost-share percentages. The 

State Conservationist will not determine 

the rates of compensation for an 

easement or 30-year contract because 

those rates will be established through 

the process outlined in § 625.8. 

NRCS also revised § 625.10(g) to 

clarify that payments will not be made 

on components of a conservation 

practice or measure. This change was 

made to ensure consistency with other 

NRCS programs. 

Compensation 

The statutory provisions at 16 U.S.C. 

6574 establish the requirements for 

easement compensation rates. 

Subsection (a) provides that the 

Secretary of Agriculture will pay a 

landowner for a permanent easement 

not less than 75 percent, nor more than 

100 percent of the fair market value of 

the land enrolled during the period the 

land is subject to the easement, less the 

fair market value of the land 

encumbered by the easement (as 

determined by the Secretary). The 

statute provides that the Secretary will 

pay the same rate for easements that are 

for the maximum duration allowed 

under State law. 

As stated in the preamble to the 

proposed rule, Federal agencies 

generally follow the Uniform Relocation 

Assistance and Real Property 

Acquisition Policies for Federal and 

Federally Assisted Programs (the 

Uniform Relocation Act), the Uniform 

Relocation Act’s implementing 

regulations at 49 CFR part 24, and the 

Uniform Appraisal Standards for 

Federal Land Acquisitions (the Yellow 

Book). The Yellow Book requires that 

compensation be based upon the impact 

that the easement encumbrance will 

have on the value of the larger parcel, 

which includes all land owned by the 

landowner that may be impacted by the 

easement, as determined by the 

appraiser. 

However, where agencies have 

statutory authority to waive general 

appraisal procedures, Federal agencies 

can develop alternative appraisal and 

valuation methodologies. Under the 

SAFE–TEA–LU Act, NRCS is exempt 

from the requirements of 49 CFR part 

24. The HFRP language for permanent 

and maximum duration easements 

requires that compensation be based on 

the impact to the value of only the land 


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enrolled and encumbered by the 

easement. Thus, the Yellow Book 

requirement of appraising the larger 

parcel does not apply for permanent 

easements, or those of the maximum 

duration required by State law. 

Comment: NRCS specifically 

requested comments on the language 

regarding the establishment of easement 

compensation rates at § 625.8. In 

response, NRCS received three 

comments. All respondents were in 

agreement that NRCS should not use the 

Yellow Book appraisal process. 

Response: No changes were made to 

the regulation based on these comments. 

NRCS will use the Uniform Standards 

for Professional Appraisal Practice to 

determine easement compensation 

values under HFRP. NRCS will use the 

same methodology to determine 

compensation values for all HFRP 

easements, both permanent and 30-year, 

to reduce confusion and maintain 

consistency. 

Comment: One respondent suggested 

that HFRP use the same appraisal 

process as the Wetlands Reserve 

Program (WRP). 

Response: No changes were made to 

the regulation based on this comment. 

HFRP has different statutory 

requirements than the WRP. The 

statutory requirements of HFRP do not 

allow for the program to use the same 

method of compensation as the WRP. 

Comment: NRCS also specifically 

requested comments on the language 

regarding ownership of ecosystem 

services credits at § 625.8(f). In 

response, the agency received three 

comments. All three respondents 

supported the ecosystem services 

credits language. 

Response: No changes were made to 

the regulation as a result of these 

comments. However, minor changes 

were made to the language in § 625.8 to 

ensure consistency across all NRCS 

programs. 

Landowner Protections and Safe Harbor 

Agreements 

The 2006 HFRP interim final rule (71 

FR 28557) included a definition of 

Landowner Protections as part of § 625.2 

and the preamble to that rule described 

those protections and how program 

participants obtain them (71 FR 28548– 

28550). Landowner Protections were 

defined in the 2006 interim final rule as: 

‘‘* * * protections and assurances made 

available to HFRP participants whose 

voluntary conservation activities result in a 

net conservation benefit for listed, candidate, 

or other species. Landowner Protections 

made available by the Secretary of 

Agriculture to HFRP participants may be 

provided under section 7(b)(4) or section 

10(a)(1) of the Endangered Species Act of 

1973 (ESA; 16 U.S.C. 1536(b)(4), 1539(a)(1)). 

These Landowner Protections may be 

provided by NRCS in conjunction with 

meeting its responsibilities under section 7 of 

the ESA, or by FWS or NFMS through section 

10 of the ESA. These Landowner Protections 

include a permit providing coverage for 

incidental take of species listed under the 

ESA. Landowner Protections also include 

assurances related to potential modifications 

of HFRP restoration plans and assurances 

related to the potential (unlikely) termination 

of Landowner Protections and any 10-year 

cost share agreement.’’ 

Landowner Protections are contingent 

upon the HFRP restoration plan and 

associated cost-share agreement or 

easement being properly implemented. 

There is no requirement that HFRP 

participants obtain any Landowner 

Protections. Generally, the three 

elements of Landowner Protections are: 

(1) Authorization for the take of 

endangered or threatened species when 

conducting management activities 

under a HFRP restoration plan and 

when returning to the baseline 

conditions at the end of the cost-share 

agreement or easement period 

(whichever is longer), (2) assurance that 

the landowner will not be required to 

undertake additional or different 

management activities without the 

consent of the landowner, and (3) 

limitations on the possibility of 

termination of a HFRP restoration plan 

that is being properly implemented by 

the landowner. 

The definition of Landowner 

Protections in the interim final rule (and 

text in the preamble) included a 

description of two approaches that the 

Secretary of Agriculture may use to 

make Land Protections available to 

HFRP participants. The regulation at 

§ 625.13(d) specifies the two ways that 

NRCS can make Landowner Protections 

available to HFRP participants upon 

request. The first approach involves 

NRCS and the HFRP participant, and 

does not require the HFRP participant to 

have direct involvement with FWS or 

NMFS. Under this approach, NRCS will 

extend to participants the incidental 

take authorization received by NRCS 

from FWS or NMFS through biological 

opinions issued as part of the 

interagency consultation process under 

section 7(a)(2) of the ESA. 

Under the second approach for 

Landowner Protections, NRCS will 

provide technical assistance to help 

participants design and use their HFRP 

restoration plan for the dual purposes of 

qualifying for HFRP financial assistance, 

and as a basis for entering into a Safe 

Harbor Agreement (SHA) or Candidate 

Conservation Agreement with 

Assurances (CCAA) with the FWS or 

NMFS under section 10(a)(1)A of the 

ESA. SHAs are voluntary arrangements 

between either the FWS or NMFS and 

cooperating participants who agree to 

adopt practices and measures, or refrain 

from certain activities in order to 

achieve net conservation benefits, i.e., a 

contribution to the recovery of listed 

species. 

A CCAA is a voluntary agreement 

between the FWS or NMFS and 

cooperating participants whereby 

landowners who voluntarily agree to 

manage their lands or waters to remove 

threats to species at risk of becoming 

listed under the ESA as threatened or 

endangered receive assurances that their 

conservation efforts will not result in 

future regulatory obligations in excess of 

those they agree to at the time they enter 

into the Agreement. CCAAs are 

intended to help conserve proposed and 

candidate species, and species likely to 

become candidates by giving private, 

non-Federal landowners incentives to 

implement conservation measures for 

declining species. The primary 

incentive for CCAAs is an assurance 

that no further additional land, water, or 

resource use restrictions would be 

imposed should the species later 

become listed under the ESA. 

There is no requirement that HFRP 

participants enter into a SHA or a 

CCAA. All SHAs are subject to the SHA 

policy jointly adopted by FWS and 

NMFS (Announcement of Final Policy, 

64 FR 32717, June 17, 1999), and SHAs 

with the FWS also are subject to 

regulations at 50 CFR part 17, and 

specifically 50 CFR 17.22(c) for 

endangered species or 17.32(c) for 

threatened species. All CCAAs are 

subject to the CCAA policy jointly 

adopted by FWS and NMFS 

(Announcement of Final Policy, 64 FR 

32726, June 17, 1999), and CCAAs with 

the FWS are also subject to regulations 

at 50 CFR part 17, and specifically 50 

CFR 17.22(d) for endangered species or 

17.32(d) for threatened species. 

Comment: One Federal agency 

respondent suggested that the regulation 

clarify the landowner protection section 

to include a return to baseline 

conditions at the end of the easement, 

contract, or agreement. The respondent 

suggested that NRCS do this in one of 

two ways, either in the definition of 

landowner protection or in the 

landowner protections section of the 

regulation. 

Response: NRCS has decided that this 

clarification is needed, and that the 

issue will be better clarified in the 

landowner protections section of the 

regulation. Based on this comment, 

NRCS added § 625.13(d)(1)(iii) to the 

Incidental Take section and 


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§ 625.13(d)(2)(iv) to the SHA or CCAA 

section to include a return to baseline 

conditions at the end of the applicable 

period. 

Comment: Two respondents 

recommended that NRCS modify 

§ 625.13(d) to clarify that the 

Landowner Protections discussed in 

that section are intended to apply to 

HFRP participants. 

Response: Based on these comments, 

NRCS corrected § 625.13(d) by inserting 

a comma after ‘‘species,’’ removing the 

words ‘‘a participant,’’ and removing the 

period at the end of the sentence. These 

changes help clarify that Landowner 

Protections are available to HFRP 

participants. 

Comment: One respondent suggested 

that NRCS provide landowners with an 

assurance that they will not be found in 

violation of the ESA or other 

environmental laws. 

Response: No changes were made to 

the regulation based on this comment. 

NRCS cannot offer this type of 

assurance to landowners. A landowner 

may be in violation of the ESA if they 

are acting outside of the SHA/CCAA 

agreement. It is the responsibility of the 

landowner to ensure that actions 

outside of the landowner protections 

provided by NRCS are consistent with 

all applicable Federal and State laws. 

NRCS does not have the authority to 

provide any assurances regarding 

compliance with other applicable 

environmental laws. 

Compatible Use Authorizations 

Comment: Two respondents suggested 

that it may be more important to address 

the issue of compatible uses in the 

context of 10-year agreements than in 

the context of easements. The 

respondents felt that compatible use 

agreements should not be needed for 

properties subject to easements since 

the easement specifically prohibits 

certain uses and allows all others. 

Response: No changes were made to 

the regulation based on these comments. 

The purpose of a compatible use 

agreement is to allow a landowner to 

conduct a prohibited activity on the 

easement if it will benefit the functions 

and values of the easement. A 

compatible use agreement is necessary 

in the context of an easement, 

particularly a permanent easement, 

which is a recorded property right and 

cannot be changed. However, a 

compatible use agreement is not 

necessary for a 10-year restoration costshare agreement because the agreement 

itself can be altered to permit the 

activity that will benefit the land. 

Comment: Two respondents 

recommended that NRCS include a 

definition of the term ‘‘compatible use’’ 

in the rule. 

Response: NRCS did not make any 

changes to the regulation based on these 

comments. Although the term is used in 

the rule, the types of activities that may 

be considered compatible may change 

depending on the circumstances. In 

order to allow for flexibility, NRCS will 

define the term compatible use in the 

policy consistent with other NRCS 

programs that allow compatible use 

authorizations. 

Comment: Three respondents asserted 

that NRCS does not have the authority 

to regulate hunting and fishing as 

compatible uses because they are a 

reserved right of the landowner. 

Response: Although undeveloped 

recreational hunting and fishing is 

identified in the deed as a reserved right 

to the landowner, any activity above 

and beyond undeveloped recreational 

use may only be authorized by NRCS 

through the compatible use process. The 

HFRP deed does not reserve to the 

landowner an unfettered right to hunt 

and fish as suggested by the 

respondents. In order to clarify this 

issue, the agency removed language 

from § 625.11(b)(2) which gave 

examples of what types of activities may 

be granted a compatible use agreement. 

NRCS removed the compatible use 

paragraph from § 625.11(b)(2) and 

combined it with § 625.11(b)(3). The 

new combined paragraph at 

§ 625.11(b)(2) now allows NRCS the 

right to determine and permit 

compatible uses on the easement area 

and specify the amount, timing, method, 

intensity, and duration of the 

compatible use, if such use is consistent 

with the long-term protection and 

enhancement of the purposes for which 

the easement was established. This new 

paragraph avoids confusion over what 

activities may be granted a compatible 

use, and instead focuses on the standard 

an activity must meet in order for a 

compatible use to be granted. 

Comment: Three respondents 

suggested that NRCS should add 

prescribed fire, grazing, and silviculture 

practices as compatible uses which are 

consistent with the long-term protection 

and enhancement of the purposes for 

which the easement was established. 

Response: No changes were made to 

the regulation as a result of these 

comments. As mentioned above, 

whether or not these activities will be 

considered compatible uses will depend 

on site-specific circumstances. In 

addition, the change made in response 

to the comments regarding hunting and 

fishing at § 625.11(b)(2) will provide 

additional clarity on this issue. The 

HFRP deed allows landowners to 

conduct routine forestry operations and 

management practices as long as such 

activities are consistent with the terms 

of the deed and the restoration plan. If 

the activity is allowed by the deed and 

consistent with the terms of the deed 

and the restoration plan, no compatible 

use authorization is required. 

Termination of Landowner Protections 

As provided for in this final rule in 

the definition of Landowner Protections 

in § 625.2 and the associated provision 

at § 625.13(d), all appropriate options 

will be pursued with the participant to 

avoid termination of the landowner 

protections in the case of landowner 

non-compliance or changed conditions. 

If the participant has entered into a SHA 

or CCAA with the FWS or NMFS (the 

Services) based on a HFRP restoration 

plan, NRCS will work with the 

participant and the Services to seek 

appropriate means of avoiding 

revocation of a permit issued under 

section 10(a)(1) of the ESA by FWS or 

NMFS to implement the SHA or CCAA. 

However, in the event of a termination, 

any requested assurances from NRCS 

will be voided, and the landowner will 

be responsible to FWS or NMFS for any 

violations of the ESA. 

The SHA policy regarding revocation 

of a permit issued in association with a 

SHA is: ‘‘The Services are prepared as a 

last resort to revoke a permit 

implementing a Safe Harbor Agreement 

where continuation of the permitted 

activity would be likely to result in 

jeopardy to a species covered by the 

permit. Prior to taking such a step, 

however, the Services would first have 

to exercise all possible means to remedy 

such a situation’’ (64 FR 32724). 

Regulations pertaining to SHA permits 

issued by FWS have a similar provision 

(50 CFR 17.22(c)(7) and 17.32(c)(7)) for 

endangered and threatened wildlife. 

Comment: One respondent suggested 

that NRCS require the landowner to 

coordinate with all parties to the 

agreement if there is termination or 

transfer of a SHA or a CCAA. 

Response: The proposed rule at 

§ 625.13(d)(2)(iv) required landowners 

to notify and coordinate with FWS and 

NMFS, as appropriate, in the event of a 

termination of the agreement. NRCS 

agrees that the landowner should be 

responsible for coordinating with any 

party to the specific SHA or CCAA, as 

applicable, such as State fish and 

wildlife agencies. Based on this 

comment, NRCS inserted language at 

§ 625.13(d)(2)(v) to require landowners 

to notify and coordinate with any 

relevant party to the specific SHA or 

CCAA. 


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6546 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

Tribal Consultation 

Comment: One respondent suggested 

that the regulations should require 

consultation with Indian tribes to 

discuss impacts and evaluate the 

effectiveness of the program over time. 

Response: No changes were made to 

the regulation based on this comment. 

Participation in HFRP is voluntary, and 

the proposed rule did not meet the 

threshold for requiring consultation as 

specified by Executive Order 13175. 

However, NRCS remains committed to 

seeking advice, guidance, and counsel 

from Indian tribes in regard to natural 

resource concerns and issues. Indian 

tribes interested in providing input 

regarding HFRP policies may submit 

their request directly to the Chief. 

Miscellaneous Changes for Clarification 

and Improved Program Administration 

NRCS removed the definition of 

‘‘contract or agreement’’ for clarity 

because each of the possible contracts or 

agreements under HFRP are defined 

specifically so a general definition is not 

necessary and may create confusion. 

NRCS removed the term ‘‘option 

agreement to purchase’’ throughout the 

document and replaced the term with 

‘‘agreement to purchase’’ to reflect more 

accurately the way the document is 

used and to allow for consistency with 

other easement programs. 

NRCS made other non-substantive 

changes for the purpose of clarity and 

consistency with other NRCS programs. 

These changes are set forth in the text 

portion of this document. 

List of Subjects in 7 CFR Part 625 

Administrative practice and 

procedure, Agriculture, Soil 

conservation, and Forestry. 

■ For the reasons stated in the preamble, 

NRCS revises 7 CFR part 625 to read as 

follows: 

PART 625—HEALTHY FORESTS 

RESERVE PROGRAM 

Sec. 

625.1 Purpose and scope. 

625.2 Definitions. 

625.3 Administration. 

625.4 Program requirements. 

625.5 Application procedures. 

625.6 Establishing priority for enrollment in 

HFRP. 

625.7 Enrollment of easements, contracts, 

and agreements. 

625.8 Compensation for easements and 30- 

year contracts. 

625.9 10-year restoration cost-share 

agreements. 

625.10 Cost-share payments. 

625.11 Easement participation 

requirements. 

625.12 30-year contracts. 

625.13 The HFRP restoration plan 

development and Landowner 

Protections. 

625.14 Modification of the HFRP 

restoration plan. 

625.15 Transfer of land. 

625.16 Violations and remedies. 

625.17 Payments not subject to claims. 

625.18 Assignments. 

625.19 Appeals. 

625.20 Scheme and device. 

Authority: 16 U.S.C. 6571–6578. 

§ 625.1 Purpose and scope. 

(a) The purpose of the Healthy Forests 

Reserve Program (HFRP) is to assist 

landowners, on a voluntary basis, in 

restoring, enhancing, and protecting 

forestland resources on private lands 

through easements, 30-year contracts, 

and 10-year cost-share agreements. 

(b) The objectives of HFRP are to: 

(1) Promote the recovery of 

endangered and threatened species 

under the Endangered Species Act of 

1973 (ESA); 

(2) Improve plant and animal 

biodiversity; and 

(3) Enhance carbon sequestration. 

(c) The regulations in this part set 

forth the policies, procedures, and 

requirements for the HFRP as 

administered by the Natural Resources 

Conservation Service (NRCS) for 

program implementation and processing 

applications for enrollment. 

(d) The Chief may implement HFRP 

in any of the 50 States, District of 

Columbia, Commonwealth of Puerto 

Rico, Guam, Virgin Islands, American 

Samoa, and the Commonwealth of the 

Northern Mariana Islands. 

§ 625.2 Definitions. 

The following definitions will be 

applicable to this part: 

30-year Contract means a contract that 

is limited to acreage owned by Indian 

tribes. The 30-year contract is not 

eligible for use on tribal lands held in 

trust or subject to Federal restrictions 

against alienation. 

Acreage Owned by Indian Tribes 

means lands to which the title is held 

by individual Indians and Indian tribes. 

This term does not include land held in 

trust by the United States or lands 

where the fee title contains restraints 

against alienation. 

Biodiversity (Biological Diversity) 

means the variety and variability among 

living organisms and the ecological 

complexes in which they live. 

Candidate Conservation Agreement 

with Assurances (CCAA) means a 

voluntary arrangement between the U.S. 

Fish and Wildlife Service (FWS) or the 

National Marine Fisheries Service 

(NMFS), and cooperating non-Federal 

landowners under the authority of 

section 10(a)(1) of the Endangered 

Species Act of 1973, 16 U.S.C. 

1539(a)(1). Under the CCAA and an 

associated enhancement of survival 

permit, the non-Federal landowner 

implements actions that are consistent 

with the conditions of the permit. CCAA 

with FWS are also subject to regulations 

at 50 CFR 17.22(d) for endangered 

species or 50 CFR 17.32(d) for 

threatened species, or applicable 

subsequent regulations. 

Carbon sequestration means the longterm storage of carbon in soil (as soil 

organic matter) or in plant material 

(such as in trees). 

Chief means the Chief of the 

Department of Agriculture (USDA) 

NRCS, or designee. 

Confer means to discuss for the 

purpose of providing information; to 

offer an opinion for consideration; or to 

meet for discussion, while reserving 

final decision-making authority with 

NRCS. 

Conservation practice means one or 

more conservation improvements and 

activities, including structural practices, 

land management practices, vegetative 

practices, forest management, and other 

improvements that benefit the eligible 

land and optimize environmental 

benefits, planned and applied according 

to NRCS standards and specifications. 

Conservation treatment means any 

and all conservation practices, 

measures, activities, and works of 

improvement that have the purpose of 

alleviating resource concerns, solving or 

reducing the severity of natural resource 

use problems, or taking advantage of 

resource opportunities, including the 

restoration, enhancement, maintenance, 

or management of habitat conditions for 

HFRP purposes. 

Coordination means to obtain input 

and involvement from others while 

reserving final decision-making 

authority with NRCS. 

Cost-share agreement means a legal 

document that specifies the rights and 

obligations of any participant accepted 

into the program. A HFRP cost-share 

agreement is a binding agreement for the 

transfer of assistance from USDA to the 

participant to share in the costs of 

applying conservation. A cost-share 

agreement under HFRP has a duration of 

10-years. 

Cost-share payment means the 

payment made by NRCS to a program 

participant or vendor to achieve the 

restoration, enhancement, and 

protection goals of enrolled land in 

accordance with the HFRP restoration 

plan. 

Easement means a conservation 

easement, which is an interest in land 

defined and delineated in a deed 


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whereby the landowner conveys certain 

rights, title, and interests in a property 

to the United States for the purpose of 

protecting the forest ecosystem and the 

conservation values of the property. 

Easement area means the land 

encumbered by an easement. 

Easement payment means the 

consideration paid to a landowner for 

an easement conveyed to the United 

States under the HFRP. 

Fish and Wildlife Service is an agency 

of the Department of Interior. 

Forest Service is an agency of USDA. 

Forest ecosystem means a dynamic set 

of living organisms, including plants, 

animals, and microorganisms 

interacting among themselves and with 

the environment in which they live. A 

forest ecosystem is characterized by 

predominance of trees, and by the 

fauna, flora, and ecological cycles 

(energy, water, carbon, and nutrients). 

HFRP restoration plan means the 

document that identifies the 

conservation treatments that are 

scheduled for application to land 

enrolled in HFRP in accordance with 

NRCS standards and specifications. 

Indian tribe means any Indian tribe, 

band, Nation, or other organized group 

or community, including any Alaska 

Native village or regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (85 Stat. 688, 43 U.S.C. 

1601 et seq.), which is recognized as 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians. 

Landowner means an individual or 

entity having legal ownership of land. 

The term landowner may also include 

all forms of collective ownership 

including joint tenants, tenants in 

common, and life tenants. 

Landowner protections means 

protections and assurances made 

available by NRCS to HFRP participants, 

when requested, and whose voluntary 

conservation activities result in a net 

conservation benefit for listed, 

candidate, or other species and meet 

other requirements of the program. 

These Landowner Protections are 

subject to a HFRP restoration plan and 

associated cost-share agreement, 30-year 

contract, or easement being properly 

implemented. Landowner protections 

made available by the Secretary of 

Agriculture to HFRP participants may 

include an incidental take authorization 

received by NRCS from FWS or NMFS, 

or may be provided by a Safe Harbor 

Agreement (SHA) or CCAA directly 

between the HFRP participant and FWS 

or NMFS, as appropriate. 

Liquidated damages means a sum of 

money stipulated in the HFRP 

restoration agreement that the 

participant agrees to pay NRCS if the 

participant fails to adequately complete 

the terms of the restoration agreement. 

The sum represents an estimate of the 

expenses incurred by NRCS to service 

the restoration agreement, and reflects 

the difficulties of proof of loss and the 

inconvenience or non-feasibility of 

otherwise obtaining an adequate 

remedy. 

Maintenance means work performed 

to keep the applied conservation 

practice functioning for the intended 

purpose during its life span. 

Maintenance includes work to prevent 

deterioration of the practice, repairing 

damage, or replacement of the practice 

to its original condition if one or more 

components fail. 

Measure means one or more specific 

actions that is not a conservation 

practice, but has the effect of alleviating 

problems or improving the treatment of 

the resources. 

National Marine Fisheries Service is 

an agency of the United States 

Department of Commerce. 

Natural Resources Conservation 

Service is an agency of USDA which has 

the responsibility for administering 

HFRP. 

Participant means a person, entity, or 

Indian tribe who is a party to a 10-year 

cost share agreement, 30-year contract, 

or an agreement to purchase an 

easement. 

Private land means land that is not 

owned by a local, State, or Federal 

governmental entity, and includes land 

that meets the definition of ‘‘acreage 

owned by Indian tribes.’’ 

Restoration means implementing any 

conservation practice (vegetative, 

management, or structural) or measure 

that improves forest ecosystem values 

and functions (native and natural plant 

communities). 

Restoration agreement means a costshare agreement between the program 

participant and NRCS to restore, 

enhance, and protect the functions and 

values of a forest ecosystem for the 

purposes of HFRP under either an 

easement, 30-year contract, or a 10-year 

cost-share agreement enrollment option. 

Safe Harbor Agreement means a 

voluntary arrangement between FWS or 

NMFS and cooperating non-Federal 

landowners under the authority of 

section 10(a)(1) of the Endangered 

Species Act of 1973, 16 U.S.C. 

1539(a)(1). Under the SHA and an 

associated enhancement of survival 

permit, the private property owner 

implements actions that are consistent 

with the conditions of the permit. SHAs 

with FWS are also subject to regulations 

at 50 CFR 17.22(c) for endangered 

species or 50 CFR 17.32(c) for 

threatened species, or applicable 

subsequent regulations. 

State-listed species means a species 

listed as threatened or endangered 

under State endangered species laws, a 

candidate for such listing, or a species 

listed in a State Wildlife Action Plan as 

a Species of Greatest Conservation 

Need. 

Sign-up notice means the public 

notification document that NRCS 

provides to describe the particular 

requirements for a specific HFRP signup. 

State Conservationist means the 

NRCS employee authorized to 

implement HFRP and direct and 

supervise NRCS activities in a State, 

Caribbean Area, or Pacific Islands Area. 

Technical service provider means an 

individual, private-sector entity, or 

public agency certified by NRCS to 

provide technical services to program 

participants in lieu of or on behalf of 

NRCS. 

§ 625.3 Administration. 

(a) The regulations in this part will be 

administered under the general 

supervision and direction of the Chief. 

(b) The Chief may modify or waive a 

provision of this part if the Chief 

determines that the application of such 

provision to a particular limited 

situation is inappropriate and 

inconsistent with the goals of the 

program. This authority cannot be 

further delegated. The Chief may not 

modify or waive any provision of this 

part which is required by applicable 

law. 

(c) No delegation in this part to lower 

organizational levels will preclude the 

Chief from determining any issue 

arising under this part or from reversing 

or modifying any determination arising 

from this part. 

(d) The State Conservationist will 

develop a list of eligible restoration 

practices, payment rates and cost-share 

percentages, a priority ranking process, 

and any related technical matters. 

(e) NRCS will coordinate with FWS 

and NMFS in the implementation of the 

program and in establishing program 

policies. In carrying out this program, 

NRCS may confer with private forest 

landowners, including Indian tribes, the 

Forest Service and other Federal 

agencies, State fish and wildlife 

agencies, State forestry agencies, State 

environmental quality agencies, other 

State conservation agencies, and 

nonprofit conservation organizations. 

No determination by the FWS, NMFS, 

Forest Service, any Federal, State, or 


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tribal agency, conservation district, or 

other organization will compel NRCS to 

take any action which NRCS determines 

will not serve the purposes of the 

program established by this part. 

§ 625.4 Program requirements. 

(a) General. Under the HFRP, NRCS 

will purchase conservation easements 

from, or enter into 30-year contracts or 

10-year cost-share agreements with, 

eligible landowners who voluntarily 

cooperate in the restoration and 

protection of forestlands and associated 

lands. To participate in HFRP, a 

landowner will agree to the 

implementation of a HFRP restoration 

plan, the effect of which is to restore, 

protect, enhance, maintain, and manage 

the habitat conditions necessary to 

increase the likelihood of recovery of 

listed species under the ESA, or 

measurably improve the well-being of 

species that are not listed as endangered 

or threatened under the ESA but are 

candidates for such listing, State-listed 

species, or species identified by the 

Chief for special consideration for 

funding. NRCS may provide cost-share 

assistance for the activities that promote 

the restoration, protection, 

enhancement, maintenance, and 

management of forest ecosystem 

functions and values. Specific 

restoration, protection, enhancement, 

maintenance, and management 

activities may be undertaken by the 

landowner or other NRCS designee. 

(1) Of the total amount of funds 

expended under the program for a fiscal 

year to acquire easements and enter into 

10-year cost-share agreements, not more 

than 40 percent will be used for costshare agreements, and not more than 60 

percent will be used for easements. 

(2) The Chief may use any funds that 

are not obligated by April 1 of the fiscal 

year for which the funds are made 

available to carry out a different method 

of enrollment during that fiscal year. 

(b) Landowner eligibility. To be 

eligible to enroll an easement in the 

HFRP, an individual or entity must: 

(1) Be the landowner of eligible land 

for which enrollment is sought; and 

(2) Agree to provide such information 

to NRCS, as the agency deems necessary 

or desirable, to assist in its 

determination of eligibility for program 

benefits and for other program 

implementation purposes. 

(c) Eligible land. 

(1) NRCS, in coordination with FWS 

or NMFS, will determine whether land 

is eligible for enrollment and whether 

once found eligible, the lands may be 

included in the program based on the 

likelihood of successful restoration, 

enhancement, and protection of forest 

ecosystem functions and values when 

considering the cost of acquiring the 

easement, 30-year contract, or 10-year 

cost share agreement, and the 

restoration, protection, enhancement, 

maintenance, and management costs. 

(2) Land will be considered eligible 

for enrollment in the HFRP only if 

NRCS determines that: 

(i) Such private land will contribute 

to the restoration or enhancement of the 

habitat or otherwise measurably 

increase the likelihood of recovery for a 

selected species listed under section 4 

of the ESA; and 

(ii) Such private land will contribute 

to the restoration or enhancement of the 

habitat or otherwise measurably 

improve the well-being of a selected 

species not listed under section 4 of the 

ESA but is a candidate for such listing, 

or the selected species is a State-listed 

species, or is a species identified by the 

Chief for special consideration for 

funding. 

(3) NRCS may also enroll land 

adjacent to eligible land if the 

enrollment of such adjacent land would 

contribute significantly to the practical 

administration of the easement area, but 

not more than it determines is necessary 

for such contribution. 

(4) To be enrolled in the program, 

eligible land must be configured in a 

size and with boundaries that allow for 

the efficient management of the area for 

easement purposes and otherwise 

promote and enhance program 

objectives. 

(5) In the case of acreage owned by an 

Indian tribe, NRCS may enroll acreage 

into the HFRP which is privately owned 

by either the tribe or an individual. 

(d) Ineligible land. The following land 

is not eligible for enrollment in the 

HFRP: 

(1) Land owned by the United States, 

States, or units of local government; 

(2) Land subject to an easement or 

deed restriction that already provides 

for the protection of fish and wildlife 

habitat or that would interfere with 

HFRP purposes, as determined by 

NRCS; and 

(3) Land that would not be eligible for 

HFRP under paragraphs (c)(1) through 

(c)(5). 

§ 625.5 Application procedures. 

(a) Sign-up process. As funds are 

available, the Chief will solicit project 

proposals from the State 

Conservationist. The State 

Conservationist may consult with other 

agencies at the State, Federal, and local 

levels to develop proposals. The State 

Conservationist will submit the 

proposal(s) to the Chief for funding 

selection. Upon selection for funding, 

the State Conservationist will issue a 

public sign-up notice which will 

announce and explain the rationale for 

decisions based on the following 

information: 

(1) The geographic scope of the signup; 

(2) Any additional program eligibility 

criteria that are not specifically listed in 

this part; 

(3) Any additional requirements that 

participants must include in their HFRP 

applications that are not specifically 

identified in this part; 

(4) Information on the priority order 

of enrollment for funding; 

(5) An estimate of the total funds 

NRCS expects to obligate during a given 

sign-up; and 

(6) The schedule for the sign-up 

process, including the deadline(s) for 

applying. 

(b) Application for participation. To 

apply for enrollment through an 

easement, 30-year contract, or 10-year 

cost-share agreement, a landowner must 

submit an application for participation 

in the HFRP during an announced 

period for such sign-up. 

(c) Preliminary agency actions. By 

filing an application for participation, 

the applicant consents to an NRCS 

representative entering upon the land 

for purposes of determining land 

eligibility, and for other activities that 

are necessary or desirable for NRCS to 

make offers of enrollment. The 

applicant is entitled to accompany an 

NRCS representative on any site visits. 

(d) Voluntary reduction in 

compensation. In order to enhance the 

probability of enrollment in HFRP, an 

applicant may voluntarily offer to 

accept a lesser payment than is being 

offered by NRCS. Such offer and 

subsequent payments may not be less 

than those rates set forth in § 625.8 and 

§ 625.10 of this part. 

§ 625.6 Establishing priority for enrollment 

in HFRP. 

(a) Ranking considerations. Based on 

the specific criteria set forth in a signup announcement and the applications 

for participation, NRCS, in coordination 

FWS and NMFS, may consider the 

following factors to rank properties: 

(1) Estimated conservation benefit to 

habitat required by threatened or 

endangered species listed under section 

4 of the ESA; 

(2) Estimated conservation benefit to 

habitat required by species not listed as 

endangered or threatened under section 

4 of the ESA but that are candidates for 

such listing, State-listed species, or 

species identified by the Chief for 

special consideration for funding; 

(3) Estimated improvement of 

biological diversity, if enrolled; 


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(4) Potential for increased capability 

of carbon sequestration, if enrolled; 

(5) Availability of contribution of nonFederal funds; 

(6) Significance of forest ecosystem 

functions and values; 

(7) Estimated cost-effectiveness of the 

particular restoration cost-share 

agreement, contract, or easement, and 

associated HFRP restoration plan; and 

(8) Other factors identified in a HFRP 

sign-up notice. 

(b) NRCS may place higher priority on 

certain forest ecosystems based regions 

of the State or multi-State area where 

restoration of forestland may better 

achieve NRCS programmatic and signup goals and objectives. 

(c) Notwithstanding any limitation of 

this part, NRCS may enroll eligible 

lands at any time in order to encompass 

project areas subject to multiple land 

ownership or otherwise to achieve 

program objectives. Similarly, NRCS 

may, at any time, exclude otherwise 

eligible lands if the participation of the 

adjacent landowners is essential to the 

successful restoration of the forest 

ecosystem and those adjacent 

landowners are unwilling to participate. 

(d) If available funds are insufficient 

to accept the highest ranked application, 

and the applicant is not interested in 

reducing the acres offered to match 

available funding, NRCS may select a 

lower ranked application that can be 

fully funded. In cases where HFRP 

funds are not sufficient to cover the 

costs of an application selected for 

funding, the applicant may lower the 

cost of the application by changing the 

duration of the easement or agreement 

or reducing the acreage offered, unless 

these changes result in a reduction of 

the application ranking score below that 

of the score of the next available 

application on the ranking list. 

§ 625.7 Enrollment of easements, 

contracts, and agreements. 

(a) Offers of enrollment. Based on the 

priority ranking, NRCS will notify an 

affected landowner of tentative 

acceptance into the program. This 

notice of tentative acceptance into the 

program does not bind NRCS or the 

United States to enroll the proposed 

project in HFRP, nor does it bind the 

landowner to convey an easement, or to 

contract or agree to HFRP activities. The 

letter notifies the landowner that NRCS 

intends to continue the enrollment 

process on their land unless otherwise 

notified by the landowner. 

(b) Acceptance of offer of enrollment. 

An agreement to purchase or a 

restoration cost-share agreement or 

contract will be presented by NRCS to 

the landowner which will describe the 

easement, agreement, or contract area; 

the easement, agreement, or contract 

terms and conditions; and other terms 

and conditions for participation that 

may be required by NRCS. 

(c) Effect of the acceptance of the 

offer. After the agreement to purchase or 

restoration cost-share agreement or 

contract is executed by NRCS and the 

landowner, the land will be considered 

enrolled in the HFRP. For easements, 

NRCS will proceed with various 

easement acquisition activities, which 

may include conducting a survey of the 

easement area, securing necessary 

subordination agreements, procuring 

title insurance, and conducting other 

activities necessary to record the 

easement or implement the HFRP, as 

appropriate for the enrollment option 

being considered. For restoration costshare agreements and contracts, the 

landowner will proceed to implement 

the restoration plan with technical 

assistance and cost-share from NRCS. 

(d) Withdrawal of offers. Prior to 

execution of an agreement to purchase, 

a restoration cost-share agreement, or 

contract between the United States and 

the landowner, NRCS may withdraw the 

land from enrollment at any time due to 

lack of availability of funds, inability to 

clear title, or other reasons. An 

agreement to purchase will be void, and 

the offer withdrawn, if not executed by 

the landowner within the time 

specified. 

§ 625.8 Compensation for easements and 

30-year contracts. 

(a) Determination of easement 

payment rates. 

(1) NRCS will offer to pay not less 

than 75 percent, nor more than 100 

percent of the fair market value of the 

enrolled land during the period the land 

is subject to the easement, less the fair 

market value of the land encumbered by 

the easement for permanent easements 

or easements for the maximum duration 

allowed under State law. 

(2) NRCS will offer to pay not more 

than 75 percent of the fair market value 

of the enrolled land, less the fair market 

value of the land encumbered by the 

easement for 30-year easements or 30- 

year contracts. 

(b) Acceptance and use of 

contributions. NRCS may accept and use 

contributions of non-Federal funds to 

make payments under this section. 

(c) Acceptance of offered easement or 

30-year contract compensation. 

(1) NRCS will not acquire any 

easement or 30-year contract unless the 

landowner accepts the amount of the 

payment that is offered by NRCS. The 

payment may or may not equal the fair 

market value of the interests and rights 

to be conveyed by the landowner under 

the easement or 30-year contract. By 

voluntarily participating in the program, 

a landowner waives any claim to 

additional compensation based on fair 

market value. 

(2) Payments may be made in a single 

payment or no more than 10 annual 

payments of equal or unequal size, as 

agreed to between NRCS and the 

landowner. 

(d) If a landowner believes they may 

be eligible for a bargain sale tax 

deduction that is the difference between 

the fair market value of the easement 

conveyed to the United States and the 

easement payment made to the 

landowner, it is the landowner’s 

responsibility to discuss those matters 

with the Internal Revenue Service. 

NRCS disclaims any representations 

concerning the tax implications of any 

easement or cost-share transaction. 

(e) Per acre payments. If easement 

payments are calculated on a per acre 

basis, adjustment to stated easement 

payment will be made based on final 

determination of acreage. 

(f) Ecosystem Services Credits for 

Conservation Improvements. USDA 

recognizes that environmental benefits 

will be achieved by implementing 

conservation practices and activities 

funded through HFRP, and that 

environmental credits may be gained as 

a result of implementing activities 

compatible with the purposes of a HFRP 

easement, 30-year contract, or 

restoration cost-share agreement. NRCS 

asserts no direct or indirect interest in 

these credits. However, NRCS retains 

the authority to ensure the requirements 

of a HFRP easement, contract, cost-share 

agreement, or restoration plan are met 

consistent with §§ 625.9 through 625.13 

of this part. Where activities required 

under an environmental credit 

agreement may affect land covered 

under a HFRP easement, restoration 

cost-share agreement, or 30-year 

contract, participants are highly 

encouraged to request a compatibility 

assessment from NRCS prior to entering 

into such agreements. 

§ 625.9 10-year restoration cost-share 

agreements. 

(a) The restoration plan developed 

under § 625.13 forms the basis for the 

10-year cost-share agreement and its 

terms are incorporated therein. 

(b) A 10-year cost-share agreement 

will: 

(1) Incorporate all portions of a 

restoration plan; 

(2) Be for a period of 10 years; 

(3) Include all provisions as required 

by law or statute; 


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(4) Specify the requirements for 

operation and maintenance of applied 

conservation practices; 

(5) Include any participant reporting 

and recordkeeping requirements to 

determine compliance with the 

agreement and HFRP; 

(6) Be signed by the participant; 

(7) Identify the amount and extent of 

cost-share assistance that NRCS will 

provide for the adoption or 

implementation of the approved 

conservation treatment identified in the 

restoration plan; and 

(8) Include any other provision 

determined necessary or appropriate by 

the NRCS representative. 

(c) Once the participant and NRCS 

have signed a 10-year cost-share 

agreement, the land will be considered 

enrolled in HFRP. 

(d) The State Conservationist may, by 

mutual agreement with the parties to the 

10-year cost-share agreement, consent to 

the termination of the restoration 

agreement where: 

(1) The parties to the 10-year costshare agreement are unable to comply 

with the terms of the restoration 

agreement as the result of conditions 

beyond their control; 

(2) Compliance with the terms of the 

10-year cost-share agreement would 

work a severe hardship on the parties to 

the agreement; or 

(3) Termination of the 10-year costshare agreement would, as determined 

by the State Conservationist, be in the 

public interest. 

(e) If a 10-year 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 10-year 

cost-share agreement where forces 

beyond the participant’s control 

prevented compliance with the 

agreement. 

§ 625.10 Cost-share payments. 

(a) NRCS may share the cost with 

landowners of restoring land enrolled in 

HFRP as provided in the HFRP 

restoration plan. The HFRP restoration 

plan may include periodic manipulation 

to maximize fish and wildlife habitat 

and preserve forest ecosystem functions 

and values, and measures that are 

needed to provide the Landowner 

Protections under section 7(b)(4) or 

section 10(a)(1) of the ESA, including 

the cost of any permit. 

(b) Landowner Protections may be 

made available to landowners enrolled 

in the HFRP who agree, for a specified 

period, to restore, protect, enhance, 

maintain, and manage the habitat 

conditions on their land in a manner 

that is reasonably expected to result in 

a net conservation benefit that 

contributes to the recovery of listed 

species under the ESA, candidate, or 

other species covered by this regulation. 

These protections operate with lands 

enrolled in the HFRP and are valid for 

as long as the landowner is in 

compliance with the terms and 

conditions of such assurances, any 

associated permit, the easement, 

contract, or the restoration agreement. 

(c) If the Landowner Protections, or 

any associated permit, require the 

adoption of a conservation practice or 

measure in addition to the conservation 

practices and measures identified in the 

applicable HFRP restoration plan, NRCS 

and the landowner will incorporate the 

conservation practice or measure into 

the HFRP restoration plan as an item 

eligible for cost-share assistance. 

(d) Failure to perform planned 

management activities can result in 

violation of the easement, 10-year costshare agreement, or the agreement under 

which Landowner Protections have 

been provided. NRCS will work with 

landowners to plan appropriate 

management activities. 

(e) The amount and terms and 

conditions of the cost-share assistance 

will be subject to the following 

restrictions on the costs of establishing 

or installing NRCS approved 

conservation practices or implementing 

measures specified in the HFRP 

restoration plan: 

(1) On enrolled land subject to a 

permanent easement or an easement for 

the maximum duration allowed under 

State law, NRCS will offer to pay not 

less than 75 percent nor more than 100 

percent of the average cost, and; 

(2) On enrolled land subject to a 30- 

year easement or 30-year contract, NRCS 

will offer to pay not more than 75 

percent of the average cost. 

(f) On enrolled land subject to a 10- 

year cost-share agreement without an 

associated easement, NRCS will offer to 

pay not more than 50 percent of the 

average costs. 

(g) Cost-share payments may be made 

only upon a determination by NRCS 

that an eligible conservation practice or 

measure has been established in 

compliance with appropriate standards 

and specifications. Identified 

conservation practices and measures 

may be implemented by the landowner 

or other designee. 

(h) Cost-share payments may be made 

for the establishment and installation of 

additional eligible conservation 

practices and measures, or the 

maintenance or replacement of an 

eligible conservation practice or 

measure, but only if NRCS determines 

the practice or measure is needed to 

meet the objectives of HFRP, and the 

failure of the original conservation 

practices or measures was due to 

reasons beyond the control of the 

landowner. 

§ 625.11 Easement participation 

requirements. 

(a) To enroll land in HFRP through a 

permanent easement, an easement for 

the maximum duration allowed under 

State law, or 30-year enrollment option, 

a landowner will grant an easement to 

the United States. The easement deed 

will require that the easement area be 

maintained in accordance with HFRP 

goals and objectives for the duration of 

the term of the easement, including the 

restoration, protection, enhancement, 

maintenance, and management of 

habitat and forest ecosystem functions 

and values. 

(b) For the duration of its term, the 

easement will require, at a minimum, 

that the landowner and the landowner’s 

heirs, successors, and assignees, will 

cooperate in the restoration, protection, 

enhancement, maintenance, and 

management of the land in accordance 

with the easement and with the terms of 

the HFRP restoration plan. In addition, 

the easement will grant to the United 

States, through NRCS: 

(1) A right of access to the easement 

area by NRCS or its representative; 

(2) The right to determine and permit 

compatible uses on the easement area 

and specify the amount, method, timing, 

intensity, and duration of the 

compatible use, if such use is consistent 

with the long-term protection and 

enhancement of the purposes for which 

the easement was established; 

(3) The rights, title, and interest to the 

easement area as specified in the 

conservation easement deed; and 

(4) The right to perform restoration, 

protection, enhancement, maintenance, 

and management activities on the 

easement area. 

(c) The landowner will convey title to 

the easement which is acceptable to 

NRCS. The landowner will warrant that 

the easement granted to the United 

States is superior to the rights of all 

others, except for exceptions to the title 

which are deemed acceptable by NRCS. 

(d) The landowner will: 

(1) Comply with the terms of the 

easement; 

(2) Comply with all terms and 

conditions of any associated agreement 

or contract; 

(3) Agree to the long-term restoration, 

protection, enhancement, maintenance, 

and management of the easement in 

accordance with the terms of the 

easement and related agreements; 


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(4) Have the option to enter into an 

agreement with governmental or private 

organizations to assist in carrying out 

any landowner responsibilities on the 

easement area; and 

(5) Agree that each person who is 

subject to the easement will be jointly 

and severally responsible for 

compliance with the easement and the 

provisions of this part, and for any 

refunds or payment adjustment which 

may be required for violation of any 

terms or conditions of the easement or 

the provisions of this part. 

§ 625.12 30-year contracts. 

(a) To enroll land in HFRP through 

the 30-year contract option, a landowner 

will sign a 30-year contract with NRCS. 

The contract will require that the 

contract area be maintained in 

accordance with HFRP goals and 

objectives for the duration of the term of 

the contract, including the restoration, 

protection, enhancement, maintenance, 

and management of habitat and forest 

ecosystem functions and values. 

(b) For the duration of its term, the 30- 

year contract will require, at a 

minimum, that the landowner and the 

landowner’s assignees, will cooperate in 

the restoration, protection, 

enhancement, maintenance, and 

management of the land in accordance 

with the contract and with the terms of 

the HFRP restoration plan. In addition, 

the contract will grant to the United 

States through NRCS: 

(1) A right of access to the contract 

area by NRCS or its representative; 

(2) The right to allow such activities 

by the landowner as hunting and 

fishing, managed timber harvest, or 

periodic haying or grazing, if such use 

is consistent with the long-term 

protection and enhancement of the 

purposes for which the contract was 

established; 

(3) The right to specify the amount, 

method, timing, intensity, and duration 

of the activities listed in paragraph 

(b)(2) of this section, as incorporated 

into the terms of the contract; and 

(4) The right to perform restoration, 

protection, enhancement, maintenance, 

and management activities on the 

contract area. 

(c) The landowner will: 

(1) Comply with the terms of the 

contract; 

(2) Comply with all terms and 

conditions of any associated agreement 

or contract; and 

(3) Agree to the long-term restoration, 

protection, enhancement, maintenance, 

and management of the contract area in 

accordance with the terms of the 

contract and related agreements. 

(d) A 30-year contract will: 

(1) Be signed by the participant; 

(2) Identify the amount and extent of 

cost-share assistance that NRCS will 

provide for the adoption or 

implementation of the approved 

conservation treatment identified in the 

restoration plan; and 

(3) Include any other provision 

determined necessary or appropriate by 

the NRCS representative. 

(e) Once the landowner and NRCS 

have signed a 30-year contract, the land 

will be considered enrolled in HFRP. 

§ 625.13 The HFRP restoration plan 

development and Landowner Protections. 

(a) The development of the HFRP 

restoration plan will be made through 

an NRCS representative, who will 

confer with the program participant and 

with the FWS and NMFS, as 

appropriate. 

(b) The HFRP restoration plan will 

specify the manner in which the 

enrolled land under easement, 30-year 

contract, or 10-year cost-share 

agreement will be restored, protected, 

enhanced, maintained, and managed to 

accomplish the goals of the program. 

(c) Eligible restoration practices and 

measures may include land 

management, vegetative, and structural 

practices and measures that will restore 

and enhance habitat conditions for 

listed species, candidate, State-listed, 

and other species identified by the Chief 

for special funding consideration. To 

the extent practicable, eligible practices 

and measures will improve biodiversity 

and optimize the sequestration of 

carbon through management that 

maintains diverse and high quality 

native forests to accomplish the goals of 

the restoration plan. NRCS, in 

coordination with FWS and NMFS, will 

determine the conservation practices 

and measures. The State Conservationist 

will develop and make available to the 

public a list of eligible practices, and 

will determine payment rates and costshare percentages within statutory 

limits. 

(d) Landowner Protections. An HFRP 

participant who enrolls land in HFRP 

and whose conservation treatment 

results in a net conservation benefit for 

listed, candidate, or other species, may 

request such Landowner Protections as 

follows: 

(1) Incidental Take Authorization. 

(i) NRCS will extend to participants 

the incidental take authorization 

received by NRCS from FWS or NMFS 

through biological opinions issued as 

part of the interagency cooperation 

process under section 7(a)(2) of the ESA; 

(ii) NRCS will provide assurances, as 

a provision of the restoration plan, that 

when a participant is provided 

authorization for incidental take of a 

listed species, NRCS will not require 

management activities related to that 

species to be undertaken in addition to 

or different from those specified in the 

restoration plan without the 

participant’s consent; 

(iii) The program participant will be 

covered by the authorization to NRCS 

for incidental take associated with 

restoration actions or management 

activities. The incidental take may 

include a return to baseline conditions 

at the end of the applicable period, if 

the landowner so desires. 

(iv) Provided the landowner has acted 

in good faith and without intent to 

violate the terms of the HFRP 

restoration plan, NRCS will pursue all 

appropriate options with the participant 

to avoid termination in the event of the 

need to terminate an HFRP restoration 

plan that is being properly 

implemented; and 

(v) If the 30-year contract or 10-year 

restoration cost-share agreement is 

terminated, any requested assurances, 

including an incidental take 

authorization under this section, 

provided by NRCS will be voided. As 

such, the landowner will be responsible 

to FWS or NMFS for any violations of 

the ESA. 

(2) SHA or CCAA. 

(i) NRCS will provide technical 

assistance to help participants design 

and use their HFRP restoration plan for 

the dual purposes of qualifying for 

HFRP financial assistance and as a basis 

for entering into a SHA or CCAA with 

FWS or NMFS and receiving an 

associated permit under section 

10(a)(1)(a) of the ESA. 

(ii) In exchange for a commitment to 

undertake conservation measures, the 

landowner may receive a permit under 

section 10 of the ESA from FWS or 

NMFS authorizing incidental take of 

species covered by the SHA or CCAA 

that may occur as a result of restoration 

actions, management activities, and for 

a listed species covered by a SHA, a 

return to baseline conditions at the end 

of the applicable period. 

(iii) All SHAs and associated permits 

issued by FWS or NMFS are subject to 

the Safe Harbor Policy jointly adopted 

by FWS and NMFS according to the 

regulations at 64 FR 32717 or applicable 

subsequently adopted policy, and SHAs 

with FWS also are subject to regulations 

at 50 CFR 17.22(c) for endangered 

species or 50 CFR 17.32(c) for 

threatened species, or applicable 

subsequent regulations. 

(iv) All CCAAs and associated permits 

issued by FWS or NMFS are subject to 

the CCAAs policy jointly adopted by 

FWS and NMFS according to the 


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6552 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

regulations at 64 FR 32706 or applicable 

subsequently adopted policy, and 

CCAAs with FWS also are subject to 

regulations at 50 CFR 17.22(d) for 

endangered species or 50 CFR 17.32(d) 

for threatened species, or applicable 

subsequent regulations. 

(v) If the 30-year contract or 10-year 

restoration cost-share agreement is 

terminated, the landowner will be 

responsible to notify and coordinate 

with FWS and NMFS or any other 

relevant party to the specific SHA or 

CCAA, as appropriate, for any 

modifications related to the SHA or 

CCAA. 

§ 625.14 Modification of the HFRP 

restoration plan. 

The State Conservationist may 

approve modifications to the HFRP 

restoration plan that do not modify or 

void provisions of the easement, 

contract, restoration agreement, or 

Landowner Protections, and are 

consistent with applicable law. NRCS 

may obtain and receive input from the 

landowner and coordinate with FWS 

and NMFS to determine whether a 

modification to the restoration plan is 

justified. Any HFRP restoration plan 

modification must meet HFRP program 

objectives, and must result in equal or 

greater wildlife benefits and ecological 

and economic values to the United 

States. Modifications to the HFRP 

restoration plan which are substantial 

and affect provisions of the contract, 

restoration cost-share agreement, or 

Landowner Protections will require 

agreement from the landowner, any 

relevant party to a specific SHA or 

CCAA, FWS, or NMFS, as appropriate, 

and may require execution of an 

amended contract or 10-year restoration 

cost-share agreement and modification 

to the Landowner Protection provisions. 

§ 625.15 Transfer of land. 

(a) Offers voided prior to enrollment. 

Any transfer of the property prior to the 

applicant’s acceptance into the program 

will void the offer of enrollment. At the 

option of the State Conservationist, an 

offer can be extended to the new 

landowner if the new landowner agrees 

to the same or more restrictive 

easement, agreement, and contract terms 

and conditions. 

(b) Actions following transfer of land. 

(1) For easements or 30-year contracts 

with multiple annual payments, any 

remaining payments will be made to the 

original landowner unless NRCS 

receives an assignment of proceeds. 

(2) Eligible cost-share payments will 

be made to the new landowner upon 

presentation of an assignment of rights 

or other evidence that title has passed. 

(3) Landowner protections will be 

available to the new landowner, and the 

new landowner will be held responsible 

for assuring completion of all measures 

and conservation practices required by 

the contract, deed, and incidental take 

permit. 

(4) If a SHA or CCAA is involved, the 

previous and new landowner may 

coordinate with FWS or NMFS, as 

appropriate, to transfer the agreement 

and associated permits and assurances. 

(5) The landowner and NRCS may 

agree to transfer a 30-year contract. The 

transferee must be determined by NRCS 

to be eligible to participate in HFRP and 

must assume full responsibility under 

the contract, including operation and 

maintenance of all conservation 

practices and measures required by the 

contract. 

(c) Claims to payments. With respect 

to any and all payments owed to a 

person, the United States will bear no 

responsibility for any full payments or 

partial distributions of funds between 

the original landowner and the 

landowner’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 an agreement or 

adjudication on the rights to the funds. 

§ 625.16 Violations and remedies. 

(a) Easement Violations. 

(1) In the event of a violation of the 

easement or any associated agreement 

involving a landowner, the landowner 

will be given reasonable notice and an 

opportunity to voluntarily correct the 

violation within 30 days of the date of 

the notice, or such additional time as 

the State Conservationist determines is 

necessary to correct the violation. 

(2) Notwithstanding paragraph (a)(1) 

of this section, NRCS reserves the right 

to enter upon the easement area at any 

time to remedy deficiencies or easement 

violations. Such entry may be made at 

the discretion of NRCS when such 

actions are deemed necessary to protect 

important listed species, candidate 

species, and forest ecosystem functions 

and values or other rights of the United 

States under the easement. The 

landowner will be liable for any costs 

incurred by the United States as a result 

of the landowner’s negligence or failure 

to comply with easement or contractual 

obligations. 

(3) In addition to any and all legal and 

equitable remedies as may be available 

to the United States under applicable 

law, NRCS may withhold any easement 

and cost-share payments owed to 

landowners at any time there is a 

material breach of the easement 

covenants, associated restoration 

agreement, or any associated contract. 

Such withheld funds may be used to 

offset costs incurred by the United 

States in any remedial actions or 

retained as damages pursuant to court 

order or settlement agreement. 

(4) The United States will be entitled 

to recover any and all administrative 

and legal costs, including attorney’s fees 

or expenses, associated with any 

enforcement or remedial action. 

(b) 30-year Contract and 10-year CostShare Agreement Violations. 

(1) If NRCS determines that a 

participant is in violation of the terms 

of a 30-year contract, or 10-year costshare agreement, or documents 

incorporated by reference into the 30- 

year contract or 10-year cost-share 

agreement, the landowner will be given 

reasonable notice and an opportunity to 

voluntarily correct the violation within 

30 days of the date of the notice, or such 

additional time as the State 

Conservationist determines is necessary 

to correct the violation. If the violation 

continues, the State Conservationist 

may terminate the 30-year contract or 

10-year cost-share agreement. 

(2) Notwithstanding the provisions of 

paragraph (b)(1) of this section, a 10- 

year cost-share agreement or 30-year 

contract termination is effective 

immediately upon a determination by 

the State Conservationist that the 

participant has: submitted false 

information; filed a false claim; engaged 

in any act for which a finding of 

ineligibility for payments is permitted 

under this part; or taken actions NRCS 

deems to be sufficiently purposeful or 

negligent to warrant a termination 

without delay. 

(3) If NRCS terminates a 10-year costshare agreement or 30-year contract, the 

participant will forfeit all rights for 

future payments under the 10-year costshare agreement or 30-year contract, and 

must refund all or part of the payments 

received, plus interest, and liquidated 

damages. 

(4) When making any 30-year contract 

or 10-year cost-share agreement 

termination decisions, the State 

Conservationist may provide equitable 

relief in accordance with 7 CFR part 

635. 

§ 625.17 Payments not subject to claims. 

Any cost-share, contract, or easement 

payment or portion thereof due any 

person under this part will be allowed 

without regard to any claim or lien in 

favor of any creditor, except agencies of 

the United States Government. 

§ 625.18 Assignments. 

Any person entitled to any cash 

payment under this program may assign 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6553 

the right to receive such cash payments 

in whole or in part. 

§ 625.19 Appeals. 

(a) A person participating in the HFRP 

may obtain a review of any 

administrative determination 

concerning eligibility for participation 

utilizing the administrative appeal 

regulations provided in 7 CFR parts 11 

and 614. 

(b) Before a person may seek judicial 

review of any administrative action 

concerning eligibility for program 

participation under this part, the person 

must exhaust all administrative appeal 

procedures set forth in paragraph (a) of 

this section, and for purposes of judicial 

review, no decision will be a final 

agency action except a decision of the 

Chief under these procedures. 

(c) Any appraisals, market analysis, or 

supporting documentation that may be 

used by NRCS in determining property 

value are considered confidential 

information, and will only be disclosed 

as determined at the sole discretion of 

NRCS in accordance with applicable 

law. 

(d) Enforcement actions undertaken 

by NRCS in furtherance of its federally 

held property rights are under the 

jurisdiction of the Federal District 

Court, and are not subject to review 

under administrative appeal regulations. 

§ 625.20 Scheme and device. 

(a) If it is determined by NRCS that a 

person has employed a scheme or 

device to defeat the purposes of this 

part, any part of any program payment 

otherwise due or paid to such person 

during the applicable period may be 

withheld or be required to be refunded 

with interest thereon, as determined 

appropriate by NRCS. 

(b) A scheme or device includes, but 

is not limited to, coercion, fraud, 

misrepresentation, depriving any other 

person of payments for 10-year costshare agreements, contracts, or 

easements for the purpose of obtaining 

a payment to which a person would 

otherwise not be entitled. 

(c) A person who succeeds to the 

responsibilities under this part will 

report in writing to NRCS any interest 

of any kind in enrolled land that is held 

by a predecessor or any lender. A failure 

of full disclosure will be considered a 

scheme or device under this section. 

Signed this 4th day of February, 2010, in 

Washington, DC. 

Dave White, 

Chief, Natural Resources Conservation 

Service. 

[FR Doc. 2010–2812 Filed 2–9–10; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 650 

RIN 0578–AA55 

Compliance With NEPA 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Final rule. 

SUMMARY: The Natural Resources 

Conservation Service (NRCS) published 

an interim final rule on July 13, 2009, 

that identified additional categorical 

exclusions, which are actions that NRCS 

has determined do not individually or 

cumulatively have a significant effect on 

the human environment and, thus, 

should not require preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS) 

under the National Environmental 

Policy Act (NEPA). This final rule 

responds to comments received on the 

interim final rule and makes final the 

provisions set forth in the interim final 

rule. NRCS’ categorical exclusions 

encompass actions that promote 

restoration and conservation activities 

related to past natural or human 

induced damage, or alteration of 

floodplains and watershed areas. For 

projects being funded under the 

American Recovery and Reinvestment 

Act of 2009 (ARRA), this final rule will 

assist NRCS in meeting mandates set 

forth in ARRA for undertaking actions 

in the most expeditious manner and in 

compliance with NEPA. 

DATES: Effective Date: The rule is 

effective February 10, 2010. 

FOR FURTHER INFORMATION CONTACT: Matt 

Harrington, National Environmental 

Coordinator, Ecological Sciences 

Division, Department of Agriculture, 

Natural Resources Conservation Service, 

1400 Independence Avenue, SW., Room 

6158 South Building, Washington, DC 

20250; Telephone: (202) 720–4925; Fax: 

(202) 720–2646; or e-mail 

NEPA2008@wdc.usda.gov, and identify 

in the subject line, ‘‘Information 

Requested.’’ This final rule may be 

accessed via Internet. Users can access 

the final rule at: http:// 

www.nrcs.usda.gov/programs/ 

Env_Assess/index.html. Persons with 

disabilities who require alternative 

means for communication (Braille, large 

print, audio tape, etc.) should contact 

the USDA TARGET Center at: (202) 

720–2600 (voice and TDD). 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is a non-significant regulatory 

action under Executive Order 12866. 

Regulatory Flexibility Act 

Pursuant to 5 U.S.C. 605(c) of the 

Regulatory Flexibility Act, NRCS has 

determined that this final rule will not 

have a significant economic impact on 

a substantial number of small entities as 

defined by that Act. Therefore, a 

regulatory flexibility analysis is not 

required for this final rule. 

Environmental Analysis 

This final rule amends the procedures 

for implementing NEPA at 7 CFR part 

650 and will not directly impact the 

environment. An agency’s NEPA 

procedures are guidance to assist the 

agency in its fulfillment of 

responsibilities under NEPA, but are not 

the agency’s final determination of what 

level of NEPA analysis is required for a 

particular action. The Council for 

Environmental Quality (CEQ) set forth 

the requirements for establishing agency 

NEPA procedures in its regulations at 40 

CFR 1505.1 and 1507.3. The CEQ 

regulations do not require agencies to 

conduct NEPA analyses or prepare 

NEPA documentation when establishing 

their NEPA procedures. The 

determination that establishing agency 

NEPA procedures does not require 

NEPA analysis and documentation has 

been upheld in Heartwood, Inc. v U.S. 

Forest Service, 230 F.3d 947, 954–55 

(7th Cir. 2000). 

Paperwork Reduction Act 

There are no requirements for 

information collection associated with 

this final rule that would require 

approval under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

Unfunded Mandates Reform Act of 1995 

NRCS assessed the effects of this 

rulemaking action on State, local, or 

tribal governments and the public. This 

action does not compel the expenditure 

of $100 million or more in any one year 

(adjusted for inflation) 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. 

Executive Order 13175 

This final rule has been reviewed in 

accordance with Executive Order 13175, 

Consultation and Coordination with 


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