Emergency Watershed Protection Program - Floodplain Easements – Disaster Relief Appropriations Act

The Emergency Watershed Protection - Floodplain Easement Program (EWPP-FPE) provides an alternative measure to traditional EWPP recovery where it is determined that acquiring an easement in lieu of recovery measures is the more economical and prudent

For this appropriation, only applicants affected by the natural disaster and only in those areas declared as a major disaster are eligible for assistance through the EWPP-FPE program. Pursuant to 7 CFR § 624.10(b)(2), NRCS may determine land is eligible under for EWPP-FPE if any of the following apply: 1) The floodplain lands were damaged by flooding at least once within the previous calendar year or have been subject to flood damage at least twice within the previous 10 years. 2) Other lands within the floodplain are eligible, provided the lands would contribute to the restoration of the flood storage and flow, provide for control of erosion, or that would improve the practical management of the floodplain easement. 3) Lands would be inundated or adversely impacted as a result of a dam breach. NRCS may determine that land is ineligible under this section if any of the following apply: 1) Implementation of restoration practices would be futile due to onsite or offsite conditions. 2) The land is subject to an existing easement or deed restriction that provides sufficient protection or restoration, as determined by the Chief of NRCS, of the floodplain's functions and values. 3) The purchase of an easement would not meet the purposes of this part.

Private and non-federal landowners are eligible for EWPP-FPE. To be eligible for EWPP-FPE, the NRCS will require participating landowners to- 1) Comply with the terms of the easement. 2) Comply with all terms and conditions of any associated agreement. 3) Convey title to the easement that is acceptable to NRCS and warrant that the easement is superior to the rights of all others, except for exceptions to the title that are deemed acceptable by NRCS. For projects that include parcels with residential dwellings or other structures on nonagricultural lands (such as flood mitigation efforts intended to assist families in moving from flood-prone areas as part of EWPP recovery efforts), a local sponsor will be identified and serve as the local cooperating entity for these efforts. A sponsor will be a local or State unit of government (city, county, conservation district, watershed conservancy district, or State agency) that has a local presence and staff available to assist in the implementation of the program.

The landowner must provide a copy of the vesting deed to the land. If the landowner is an entity, the entity must provide a list of the individuals who comprise the entity, including the percent of ownership for each individual, to the Farm Service Agency (FSA). The entity must provide documents to FSA and NRCS that show the entity to be legal and valid in the State and which members have the authority to sign contractual documents on behalf of the entity. If funds are being requested for the purchase of easements on lands with residences or other nonagricultural structures, the State Conservationist (STC) must provide confirmation that the acquisition is part of a strategy that will facilitate the restoration of an entire reach of the floodplain. The relatively high cost of these transactions requires a greater level of documentation that the benefits to the floodplain outweigh the costs. In addition, the STC must provide confirmation that the project sponsor will acquire fee title to the easement area.

NRCS may bear up to 100 percent of costs related to easement acquisition and related acquisition costs. NRCS will determine easement compensation in accordance with applicable regulation and other law. NRCS will not acquire any easement unless the landowner accepts the amount of the easement payment that is offered by NRCS. NRCS reserves the right not to purchase an easement if the easement compensation for a particular easement would be too expensive, as determined by NRCS. NRCS may provide up to 100 percent of the restoration and enhancement costs of the easement. NRCS may enter into an agreement with the landowner or another third party to ensure that identified practices are implemented. NRCS, the landowner, or other designee may implement identified practices. Restoration and enhancement efforts may include both structural and non-structural practices. An easement acquired under this EWPP-Floodplain Easement regulations shall provide NRCS with the full authority to restore, protect, manage, maintain, and enhance the functions and values of the floodplain.

EWPP-FPE are a long-term solution and exist for perpetuity. After initial eligibility and project selection, easement acquisition phase requires 18 to 24 months on average. Following easement acquisition phase, restoration implementation phase requires 1 to 3 years until all practices are installed and vegetative practices are considered established. Continues until all EWPP-FPE Program measures are installed (relocation or demolition of structures and/or floodplain restoration practices). Maintenance and monitoring of floodplain easements continues in perpetuity.

Preapplication coordination is required. An environmental impact statement is required for this listing. This program is excluded from coverage under E.O. 12372. NRCS state offices in impacted states will submit an assessment of potential level of interest in areas with eligible lands.

2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards applies to this program. Landowners may only enroll land in the Emergency Watershed Protection for Floodplain Easements (EWPP-FPE) Program through a permanent easement. Landowners apply for the EWPP-FPE using the "Application for Long-Term Contracted Assistance."

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

1) States receive applications, gather landowner information, rank applications, conduct preliminary investigations, and determine land and landowner eligibility. 2) The State Conservationist (STC) will submit an Easement Request Package to NHQ that includes documentation of land eligibility, landowner eligibility, and evidence of disaster damage. 3) Easement Request Packages will be reviewed and project selection will be conducted by the Deputy Chief for Programs. 4) Selected applications will be notified, either through an intent to continue letter or as a project approval letter to the STC. 5) The State will prepare and send to the applicants an Agreement for the Purchase of Conservation Easement (APCE) and when the APCE has been signed by the applicant and the STC, the acres are considered enrolled in the program. At this time, the funds are obligated to the landowner, as the vendor, for the easement purchase cost only. 6) The effective period of the APCE may not exceed 12 months from the date of the STC's signature. The effective period may be extended when necessary using the APCE extension. In addition to the above described activities, for EWPP-FPE applications on land with residences or other structures, NRCS will enter into an agreement with the project sponsors prior to the commencing of easement acquisition activities. The agreement must specify the reimbursable tasks to be carried out by the sponsor to expedite the easement acquisition process. 7) In order to reduce the administrative burden and easement management cost to NRCS, sponsors are required to purchase the fee simple title from the landowner and enroll properties in a strategic manner that increases the likelihood that the floodplain can be reconnected and restored. The EWPP-FPE warranty easement deed is closed before the fee simple interest is conveyed to the sponsor, unless a different order of recordation is desired by NRCS and authorized by the Office of the General Counsel.

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

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