Rule2024-17819
Tribe or Tribal Organization Sponsor Option for Watershed Projects
Primary source
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Published
August 14, 2024
Effective
August 14, 2024
Issuing agencies
Agriculture DepartmentNatural Resources Conservation Service
Abstract
The Natural Resources Conservation Service (NRCS) is amending its regulations for watershed projects to allow Indian Tribes or Tribal organizations to sponsor needed watershed projects. While federally recognized Tribes generally maintain regulatory jurisdiction over their land and can therefore exert eminent domain, Alaska Native Corporations and Tribal organizations do not have eminent domain authority, which has been one of the requirements to be a watershed project sponsor. This rule change will provide an option to better allow federally recognized Tribes, Alaska Native Corporations, or Tribal organizations to become watershed project sponsors.
Full Text
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<title>Federal Register, Volume 89 Issue 157 (Wednesday, August 14, 2024)</title>
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[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Rules and Regulations]
[Pages 65989-65991]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17819]
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Rules and Regulations
Federal Register
________________________________________________________________________
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 157 / Wednesday, August 14, 2024 /
Rules and Regulations
[[Page 65989]]
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 622
[Docket ID NRCS-2023-0020]
RIN 0578-AA72
Tribe or Tribal Organization Sponsor Option for Watershed
Projects
AGENCY: Natural Resources Conservation Service, Department of
Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: The Natural Resources Conservation Service (NRCS) is amending
its regulations for watershed projects to allow Indian Tribes or Tribal
organizations to sponsor needed watershed projects. While federally
recognized Tribes generally maintain regulatory jurisdiction over their
land and can therefore exert eminent domain, Alaska Native Corporations
and Tribal organizations do not have eminent domain authority, which
has been one of the requirements to be a watershed project sponsor.
This rule change will provide an option to better allow federally
recognized Tribes, Alaska Native Corporations, or Tribal organizations
to become watershed project sponsors.
DATES:
Effective date: August 14, 2024.
Comment date: We will consider comments that we receive by
September 13, 2024.
ADDRESSES: We invite you to submit comments in response to this rule.
You may submit your comments through one of the following methods
below:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for Docket ID NRCS-2023-0020. Follow the
instructions for submitting comments.
All comments received will be made publicly available on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Ralph Smith; telephone: (202) 819-
6587; email: <a href="/cdn-cgi/l/email-protection#1b697a776b73356876726f735b6e687f7a357c746d"><span class="__cf_email__" data-cfemail="e391828f938bcd908e8a978ba396908782cd848c95">[email protected]</span></a>. Individuals who require alternative
means for communication should contact the U.S. Department of
Agriculture (USDA) Target Center at (202) 720-2600 (voice).
SUPPLEMENTARY INFORMATION:
Background
Watershed projects are authorized under the Watershed Protection
and Flood Prevention Act of 1954 (Pub. L. 83-566, 16 U.S.C. 1001-1008),
as amended, and the Flood Control Act of 1944 (Pub. L. 78-534, 33
U.S.C. 701b-1). Public Law 83-566 and Public Law 78-534 authorize the
Secretary of Agriculture to cooperate with State and local agencies,
federally recognized Tribes, Alaska Native Corporations, and Tribal
organizations in the planning and carrying out of works of improvement
for flood prevention; for the conservation, development, utilization,
and disposal of water; and for the conservation and proper use of land.
NRCS administers these authorities for watershed projects for USDA.
NRCS provides technical and financial assistance for watershed
projects. Participation in watershed projects is voluntary.
NRCS is amending its regulations for watershed projects to allow
more Indian Tribes or Tribal organizations to sponsor needed watershed
projects.
While federally recognized Tribes generally maintain regulatory
jurisdiction over their land and can therefore exert eminent domain,
Alaska Native Corporations and Tribal organizations do not have eminent
domain authority, which has been one of the requirements to be a
watershed project sponsor. This requirement is not necessary when the
Tribe or Tribal organization has already acquired the necessary real
property interests needed in connection with the works of improvement.
Through the Watershed and Flood Prevention Operations Program, NRCS
provides technical and financial assistance to entities of State and
local governments, federally recognized Tribes, Alaska Native
Corporations, and Tribal Organizations in need of help with protecting
and restoring small watersheds for multiple purposes including, but not
limited to, flood prevention, watershed protection, and agricultural
water management. These locally sponsored projects are highly
coordinated between sponsoring and regulatory agencies and involve
detailed studies before design and implementation can begin.
Exemption for Tribes or Tribal Organizations To Become Watershed
Project Sponsors
This rule change will provide an option to allow more Indian
Tribes, defined under the legislative authorization to include Alaska
Native Corporations (25 U.S.C. 5304), or Tribal organizations to become
watershed project sponsors.
This rule will modify the sponsorship requirements to increase
Indian Tribes or Tribal organizations ability to be a sponsor for
watershed projects to:
(1) Prevent damage from erosion, floodwater, and sediment;
(2) Further the conservation, development, utilization, and
disposal of water; and
(3) Further the conservation and proper utilization of land.
Specifically, the rule will revise the regulation in 7 CFR 622.10
to add an exemption for applicable Indian Tribes and Tribal
organizations from the requirement to have eminent domain in order to
be a watershed project sponsor.
NRCS must revise its current regulations to modify the power of
eminent domain requirement for watershed project sponsors. While
federally recognized Tribes generally maintain regulatory jurisdiction
over their land and can therefore exert eminent domain, Alaska Native
Corporations and Tribal organizations do not have eminent domain
authority. Still, many Indian Tribes and Tribal organizations have
expressed the need to sponsor watershed projects. As noted above, the
rule change will exempt Indian Tribes or Tribal organizations from that
requirement.
NRCS currently has requests from approximately 30 Indian Tribes or
Tribal organizations for watershed projects in 9 states.
The change in the regulation will help to ensure that Indian Tribes
or Tribal organizations have the opportunity to sponsor watershed
projects if there is a need.
[[Page 65990]]
Being a sponsor of a watershed project is voluntary. There are no
anticipated changes to the current overall watershed project costs or
benefits to customers, NRCS or others. The change is relatively minor
in the overall scope of the Public Law 83-566 and Public Law 78-534
watershed projects.
Notice and Comment, Effective Date, and Exemptions
The Administrative Procedure Act (5 U.S.C. 553) provides that the
notice and comment and 30-day delay in the effective date provisions do
not apply when the rule involves a matter relating to agency management
or personnel or to public property, loans, grants, benefits, or
contracts. This rule involves matters relating to financial assistance,
which is considered a benefit.
This rule is exempt from the regulatory analysis requirements of
the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996.
For major rules, the Congressional Review Act requires a delay in
the effective date for 60 days from the date of publication to allow
for Congressional review. This rule is not a major rule under the
Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore,
this rule is effective upon publication in the Federal Register.
Executive Orders 12866 and 13563
Executive Order 12866, ``Regulatory Planning and Review'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits. The assessment should
include potential economic, environmental, public health and safety
effects, distributive impacts, and equity. Executive Order 13563
emphasized the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as
not significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and therefore, OMB has not reviewed this rule.
Environmental Review
The environmental impacts of this rule have been considered in a
manner consistent with the provisions of the National Environmental
Policy Act (NEPA) (42 U.S.C. 4321-4347), the regulations of the Council
on Environmental Quality (40 CFR parts 1500 through 1508), and the NRCS
regulations for compliance with NEPA (7 CFR parts 1b and 650).
This rule makes a minor discretionary amendment to improve
administration of the program and clarify existing program
requirements. The discretionary change will not alter any environmental
impacts resulting from implementing the change for watershed projects.
Accordingly, the discretionary change is covered by the USDA
Categorical Exclusion for policy development, planning, and
implementation that relates to routine activities (7 CFR 1b.3(a)(1)).
Through this review, NRCS determined that the discretionary change
in this rule is within the categorical exclusion listed above.
Categorical exclusions apply when no extraordinary circumstances exist
(7 CFR 650.6(c)(2)). The amendment will not have an adverse impact on
the human environment, individually or cumulatively. Therefore, NRCS
will not prepare an environmental assessment or environmental impact
statement for this rule.
Executive Order 12988
This rule has been reviewed under E.O. 12988 on ``Civil Justice
Reform.'' This rule will not preempt State or local laws, regulations,
or policies unless they represent an irreconcilable conflict with this
rule. This rule will not have a retroactive effect.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
E.O. 13175, ``Consultation and Coordination with Indian Tribal
Governments.'' E.O. 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
NRCS developed the rule changes in response to requests from Tribes
and Alaska Native Corporations seeking greater flexibility in the
administration of USDA programs. Tribes have suggested this change as a
means of removing a barrier to their participation in the Watershed and
Flood Prevention Operations Program. If a Tribe requests consultation,
the USDA Office of Tribal Relations (OTR) will ensure meaningful
consultation is provided where changes, additions, and modifications
are not expressly mandated by law.
The Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including cost benefits analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule contains no Federal mandates, as defined in title II of UMRA, for
State, local, and Tribal governments, or the private sector. Therefore,
this rule is not subject to the requirements of sections 202 and 205 of
UMRA.
Paperwork Reduction Act
This rule has been reviewed in compliance with the Paperwork
Reduction Act (44 U.S.C. 3501-3520). This rule does not have any
information collection requirements. NRCS neither collects information
from the public nor sponsors the collection of information from the
public for the watershed programs.
USDA Non-Discrimination Policy
In accordance with Federal civil rights law and USDA civil rights
regulations and policies, the USDA, its agencies, offices, and
employees, and institutions participating in or administering USDA
programs are prohibited from discriminating based on race, color,
national origin, religion, sex, gender identity (including gender
expression), sexual orientation, disability, age, marital status,
family or parental status, income derived from a public assistance
program, political beliefs, or reprisal or retaliation for prior civil
rights activity, in any program or activity conducted or funded by USDA
(not all bases apply to all programs). Remedies and complaint filing
deadlines vary by program or incident.
Individuals who require alternative means of communication for
program information (for example, braille, large print, audiotape,
American Sign Language, etc.) should contact the
[[Page 65991]]
responsible agency or the USDA TARGET Center at (202) 720-2600 (voice
and text telephone (TTY)) or dial 711 for Telecommunications Relay
Service (both voice and text telephone users can initiate this call
from any telephone). Additionally, program information may be made
available in languages other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at <a href="https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint">https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint</a> and
at any USDA office or write a letter addressed to USDA and provide in
the letter all the information requested in the form. To request a copy
of the complaint form, call (866) 632-9992. Submit your completed form
or letter to USDA by: (1) mail to: U.S. Department of Agriculture,
Office of the Assistant Secretary for Civil Rights, 1400 Independence
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3)
email: <a href="/cdn-cgi/l/email-protection#8dfdffe2eaffece0a3e4e3f9ece6e8cdf8fee9eca3eae2fb"><span class="__cf_email__" data-cfemail="1060627f7762717d3e797e64717b7550656374713e777f66">[email protected]</span></a>.
USDA is an equal opportunity provider, employer, and lender.
List of Subjects in 7 CFR Part 622
Flood control, Grant programs--natural resources, Loan programs--
natural resources, Soil conservation, Technical assistance, Watersheds.
For the reasons discussed above, NRCS amends 7 CFR part 622 as
follows:
PART 622--WATERSHED PROJECTS
0
1. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1001-1012a, and 33 U.S.C. 701b-1.
Subpart B--Qualifications
0
2. In Sec. 622.10, revise paragraph (a) to read as follows.
Sec. 622.10 Sponsors.
(a) Watershed projects are sponsored by one or more local
organizations qualifying as sponsors. All watershed plans must be
sponsored by entities legally organized under State law or by any
Indian Tribe or Tribal organization having the authority to carry out,
operate, and maintain works of improvement.
(1) In General. Those plans that incorporate the use of
nonstructural or structural measures must be sponsored by organizations
that, individually or collectively, have:
(i) The power of eminent domain, except as provided in paragraph
(a)(2) of this section; and
(ii) The authority to levy taxes or use other adequate funding
sources, to finance their share of the watershed project cost and all
operation and maintenance costs.
(2) Exception. Paragraph (a)(1)(i) of this section does not apply
to Indian Tribes or Tribal organizations.
* * * * *
Terry Cosby,
Chief, Natural Resources Conservation Service.
[FR Doc. 2024-17819 Filed 8-13-24; 8:45 am]
BILLING CODE 3410-16-P
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