The URL can be used to link to this page

Home My WebLink AboutDamage Survey Report ._ � RESOLUTION 2013=325 ADOPTED DOC ID: 8739 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2013-325 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON APRIL 23,2013: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Sponsor Concurrence to the Damage Survey Report of the USDA's Natural Resource Conservation Service,Form SF-424 entitled"Application for Federal Assistance", and any and all other related documents,relative to the request for funding from the Emergency Watershed Protection Program for repair of damaged dikes on certain agricultural parcels in the Town, subject to the approval of the Town Attorney. 0%�wv��- Elizabeth A.Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Christopher Talbot, Councilman SECONDER:Louisa P. Evans, Justice AYES: Dinizio Jr, Ruland, Doherty, Talbot, Evans, Russell U.S.Department of Agriculture NRCS-ADS-093 Natural Resources Conservation Service 72012 NOTICE OF GRANT AND AGREEMENT AWARD 1.Award Identifying Number 2.Amendment No. 3.Award/Project Period 4.Type of Award Instrument 68-2C31-3-0007 date of STC signature-12/12/2013 Cooperative Agreement 5.Agency: Natural Resources Conservation Service(MRCS) 6.Recipient Organization: (Name and Address) (Name and Address) Town of Southold New York State Office 53095 Main Road,PO box 1179 441 S. Salina Street Southold,NY 11971-0959 Suite 354, Room 520 DUNS: EIN: 197736387 11-6009939 7.MRCS Program Contact: 8.NRCS Administrative Contact: 9.Recipient Program 10.Recipient Administrative Liz Camps Laureen Eipp Contact: Contact: District Conservationist Contracting Officer 11.CFDA Number 12.Authority 13.Type of Action 14.Project Director 10.923Emergency Watershed Protection Program; New Agreement Peter Wright -Section 216,PL 81-516 State Conservation Engineer 15.Project Title/Description: DSR S-TSH-01, Dike Repair 16. Entity Type: Profit ,,Nonprofit _higher Education Federal x StateaAcal _Indian/Native American Other 18.Accounting and Appropriation Data 17. Select Funding Type: Federal Non-Federal Financial Code Amount Fiscal Year Treasury Symbol Original Funds Total: 1,528,147.50 463,075.00 EM FA 63F 5054,1,389,225.00 2013 13X1072 Additional Funds Total: EWP TA 63T 5054 138,922.50 2013 13X1072 Grand Total: 1,528,147.50 463,075.00 19. APPROVED BUDGET Personnel is Fringe Benefits $ Travel $ Equipment $ Supplies S Contractual S Construction $ 1,852,300.00 Other $138,922.50 Total Direct Cost\ $ 1,862,300.00 Total Indirect Cost $ 138,922.550 Total Non-Federal Funds $463,075.00 Total Federal Funds Awarded $ 1,528,147.50 Total Approved Budget $1,991,222.50 This agreement is subject to applicable USDA NRCS statutory provisions and Financial Assistance Regulations. In accepting this award or amendment and any payments made pursuant thereto,the undersigned represents that he or she is duly authorized to act on behalf of the awardee organization,agrees that the award is subject to the applicable provisions of this agreement(and all attachments),and agrees that acceptance of any payments constitutes an agreement by the payee that the amounts,if any found by NRCS to have been overpaid,will be refunded or credited in full to NRCS. Page 1 U.S.Department of Agriculture NRCS-ADS-093 Natural Resources Conservation Service 72012 (Continuation) NOTICE OF GRANT AND GREEMENT AWARD Award Identifying Number Amendment No. Awar&Projec t Period I Type of Award Instrument 68-2C31-3-007 date of STC signature-1211212013 Cooperative Agreement Name and Title of Authorized Government Representativ ' ature Date Donald J.Pettit State Conservatlonist '�—IM / Name and Title of Authorized Recipient Representative Signature Date Scott A.Russell Town Supervisor NONDISCRIMINATIO STATEMENT The U.S.Department of Agriculture(USDA)prohibits discrimination in al its programs and activities on the basis of race,color, national origin,age,disability,and where applicable,sex,marital status, ial status,parental status,religion,sexual orientation, genetic information,political beliefs,reprisal,or because all or a part of an _ 'vidual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with ' bilities who require alternative means for communication ofprogram information(Braille,large print,audiotape,etc.)should contact SDA's TARGET Center at(202)720-2600(voice and TDD). To file a complaint ofdiscrimination write to USDA,Director,Office of ' Rights,1400 Independence Avenue,SW.,Washington, DC 20250-9410 or call(800)795-3272(voice)or(202)720-6382(TDD). SDA is an equal opportunity provider and employer. PRIVACY ACT STA EMENT The above statements are made in accordance with the Privacy Act of 1974 5 U.S.C.Section 522x). Page 2 COOPERATIVE AGREEMENT No.68-2C31-3-0007 between the UNITED STATES DEPARTMENT OF AGRICULTURE NATURAL RESOURCES CONSERVATION SERVICE(MRCS) and TOWN OF SOUTHOLD PROJECT: Emergency Watershed Protection(EWP)Project S-TSH-01—Technical and Financial Assistance Locally Led by the Sponsor L AUTHORITY 1. Under the provisions of Section 216 of Public Law 81-516,Emergency Watershed Protection Program, and Title IV of the Agricultural Credit Act of 1978,Public Law 95-334,NRCS is authorized to assist the Sponsor in relieving hazards created by natural disasters that cause a sudden impairment of a watershed. 2. Code of Federal Regulations,Title 7: Agriculture,Part 624-Emergency Watershed Protection,paragraph 624.8(c) authorizes NRCS to enter into a Cooperative Agreement with a Sponsor to assist the Sponsor in relieving hazards created by natural disasters that cause a sudden impairment of a watershed. 3. For purposes of this Agreement, "Sponsor"refers to Town of Southold and is defined in 7 CFR 624.4(8)as: "Project Sponsor means a State government or a State agency or a legal subdivision thereof, local unit of government,or any Native American tribe or tribal organization as defined in Section 4 of the Indian Self-Determination and Education Assistance Act(25 U.S.C.450b), with a legal interest in or responsibility for the values threatened by a watershed emergency;is capable of obtaining necessary land rights;and is capable of carrying out any operation and maintenance responsibilities that may be required." II. PURPOSE The purpose of this Agreement is to provide financial assistance to the Sponsor to implement emergency recovery measures. The damage was caused by Hurricane Sandy. The sites and work to be completed, shown below,have been agreed to by the Sponsor and NRCS. It is agreed that the following-described work is to be constructed at an estimated cost not to exceed $1,852,300.00. 1 Damage Survey Report Description Estimated (DSR)*No. Construction Cost S-TSH-01 Dike Repair $1,852,300.00 Total Estimated Construction Cost $1,852,300.00 *(Attachment A) III.THE SPONSOR's RESPONSIBILITIES AND OBLIGATIONS 1. Programmatic Requirements-The Sponsors shall provide for accomplishment of the emergency watershed protection measures described in Section II through a locally awarded, competitive contract and provide for their completion within 90 days from the time that this Agreement is executed or no later than December 12,2013. This Agreement is effective on the date of final signature by NRCS on the NRCS-ADS-093 form-Notice of Grant and Agreement Award. The Agreement may be amended to extend the date if it becomes apparent that the work will not be completed within this time frame. Requests from the Sponsor to the NRCS Statb Conservationist to extend the date of the Agreement must be submitted in writing no later than 60 days prior to the expiration date of this Agreement and/or amendments to this Agreement.Extension requests must include justification documenting the need for the extension. a. Designate an individual to serve as liaison between the NRCS and the Sponsor. The -major duties,responsibilities and authorities of the Sponsor Project Manager will be to review and concur with specifications and drawings for the works to be installed to repair damages described in the DSR, obtain Sponsor concurrence with any modification and/or changes, assist in the final inspection of the works of improvement, certify along with the Sponsor's Professional Engineer when all work has been completed according to the specifications and drawings,submit the SF-270 and supporting documents to the NRCS Administrative Contact for processing reimbursement. b. The Sponsor shall complete all required work under this Agreement,including but not limited to construction of works of improvement, quality assurance during construction, final inspection,payment of all contractors,submissions of as-built plans and certification of final quantities,etc. C. Once the project is completed and all requests for reimbursement submitted, any excess funding remaining in this Agreement(over and above the NRCS commitment of up to 75 percent of actual construction costs and within the not-to-exceed amount)will be de- obligated from the Agreement. NOTE: EWP program rules prohibit NRCS from reimbursing-the Sponsor for work performed prior to the effective date of this Agreement(date signed by NRCS State Conservationist). NY-April 2013 Page 2 of 15 2. Funding and Cost-Share -NRCS funding for this project is provided to the Sponsor in two separate NRCS funding accounts as shown on form NRCS-ADS-093. NRCS program requirements require the Sponsor to account for expenditures separately. The following is a description of the accounts: a. The Technical Assistance(TA)funds($)may be expended for items such as: L Costs for surveys,developing the design and specifications,and conducting inspections. ii. Costs for developing and 'issuing a solicitation(s)for construction,evaluating offers, and awarding a construction contract. iii. Costs of administering and managing the Sponsor's construction contract including construction inspection,certifying completion and preparing as-built drawings. iv. Other administrative costs such as verifying invoices,record keeping, and accounting for Sponsor resources expended for the project. v. NRCS is obligating TA funding of$138,922.50. This amount is the maximum Federal funds available to cover actual TA costs as described above. The maximum value of in-kind technical services that will be reimbursed to the Sponsor will not exceed 7.5 percent of the actual cost of constructing the emergency watershed protection measures described in Section II of this Agreement. TA funding for this Agreement may be insufficient to cover all TA costs. As such,this will require the Sponsor to cover any cost exceeding the 7.5 percent to fully complete all necessary TA work. vi. Payment will be made upon receipt of the final SF-270(Attachment G)and supporting documents for the project. Unexpended TA funding will be de- obligated by NRCS and may be reallocated to other nationwide EWP program projects. b. The Financial Assistance(FA) are to be used exclusively for actual allowable costs of on-the-ground construction described in Section II above. Total estimated construction cost of the project covered in this Agreement is$1,852,300.00. L NRCS is obligating FA funding of$1,389,225.00 to the Sponsor or up to 75 percent of total actual allowable on-the-ground construction costs. Actual cost of construction will consist of contracts awarded to contractors plus eligible Sponsor in-kind construction services of materials,labor, and equipment. The Sponsor shall provide NRCS records to support costs incurred. ii. The Sponsor is responsible for cost-sharing of$463,075.00 or at least 25 percent of total actual on-the-ground construction costs. The Sponsor's contribution may be comprised of Sponsor's funds,the value of in-kind labor,materials, use of equipment, etc. NOTE: The Sponsor is prohibited from using Federal funds for any portion of their cost-share requirement. Fiinds are considered Federal in origin if disbursed directly to the Sponsor by a Federal government agency or indirectly through another entity. For example,Federal funding to a state agency passed by the State to a County and from the County to a City is considered to be NY-April 2013 Page 3 of 15 Federal in origin by the State,the County, and the City. Neither the State, County,nor City could use the Federal funds as a cost-share contribution. iii. If the Sponsor desires to increase the level of protection over and above that described in the NRCS Damage Survey Report(DSR),the Sponsor will be responsible for paying 100 percent of the costs of any unapproved and unfunded upgrade or additional works of improvement not eligible for Federal cost share. C. The Sponsor shall submit quarterly a Federal Financial Report(FFR)as required by the Office of Management and Budget(OMB). A copy of the FFR form SF-425 (Attachment G)can also be found on OMB's website at hLtp://www.whitehouse.izoy/omb/aants forms/. This will serve as NRCS's required quarterly accrual information. An accrual is the value of the work you have performed or will perform in cooperation with NRCS but for which you have not yet submitted an SF-270. The Sponsor will complete the SF-425 FFR and submit it to the NRCS Administrative Contact no later than 15 days prior to the end of the fiscal quarter (submit by March 15,June 15,September 15,and December 15). Failure to submit reports in accordance with the above schedule may result in suspension or termination of this Agreement. The Sponsor will submit a final report to the NRCS Administrative Contact no later than 90 days after the completion of all work required under this Agreement. The final FFR reporting end date is the end date of the project or of the Agreement period. d. This Cooperative Agreement constitutes Federal financial assistance and the following provisions are applicable: i. Universal Identifier and Central Contractor Registration(2 CFR 25)_—The Sponsor must register in the System for Award Management—SAM (formerly the Central Contractor Registration-CCR database)www.SAM.gov prior to award of an Agreement,unless you are exempted from this requirement under 2 CFR 25.110. The Sponsor must maintain the currency of information in the database until the final FFR is filed or final payment is received, whichever is later. This requires that the Sponsor review and update the information annually after the initial registration and more frequently if there are changes. ii. Federal Prime Contractor Subaward and Executive Compensation Reporting(2 CRF 170)- Applicable to each action that obligates$25,000 or more in Federal funds. The Federal Funding,Accountability and Transparency Act(FFATA) requires Federal prime awardees to use the FFATA Subaward Reporting System (FSRS)www.FSRS.gov to report subaward and executive compensation data for first-tier subawards. 3. Procurement and Contracting- The Sponsor will conduct all procurement activities in a manner that provides,to the maximum extent possible,free and open competition. The Sponsor shall provide NRCS a copy of any solicitation(Invitation for Bids,Request for Quotations,etc.),bid abstracts,and awarded contract, or other basis of cost. a. The Sponsor will solicit,evaluate, award, and manage design and construction contracts in accordance with established Sponsor procurement policy and all applicable Federal and State laws and regulations.Reference 7 CFR Part 3016.36 (Attachment E)for NY-April 2013 age 4 of 15 procurement requirements including required USDA bonding requirements and construction contract clauses. The Code of Federal Regulations (CFR)is accessible on line at www.ecfr.gov. b. Recipients of Federally-Assisted Programs are required to post the following notice in their offices and include,in full,on all materials regarding this project that are produced by the recipient for public information,public education,or public distribution: "In accordance with Federal law and U.S Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, or disability. i To file a complaint of discrimination write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call(800) 795-3272 (voice)or (202) 720-6382 (TDD). USDA is an equal opportunity,'provider and employer." 4. Pre-Construction-Prior to beginning any on-the-ground construction work, the Sponsor will hold a pre-design conference that will include(at a minimum)the Sponsor,Sponsor's design engineer and NRCS Project Manager in order!to set forth design parameters concurred with by both the Sponsor and MRCS. During the conference the participants will review the following items to ensure all concerns relative to project requirements have been addressed: a_. � Permits-The Sponsor is responsible for securing all permits. It is the Sponsor's duty to confirm that all Federal,State, and local permits have been applied for and permits have been received prior to beginning work at the site. Sponsors shall provide copies of site maps to appropriate Federal and State agencies for environmental review. Sponsor will notify NRCS of environmental clearance,modification of construction plans,or any unresolved concerns. The Sponsor shall transmit copies of all permits,licenses, and other documents required by Federal, State,and local statutes and ordinances to NRCS prior to solicitation of construction bids for installation of the works of improvement. All modifications to the plans and specifications shall be reviewed and concurred in by MRCS. All costs relative to obtaining required permits,complying with permit special conditions and permit reporting will be borne by the Sponsor. In accordance with EWP program regulations,;NRCS cannot pay for these costs nor _ can these costs be counted as a cost-share contribution by the Sponsor. I b. Endangered Species Act(ESA) Compliance The Sponsor is responsible for compliance with the ESA. The Sponsor agrees;to implement all necessary avoidance, minimization and conservation mitigation measures for the protection of threatened and endangered species identified through consultation with the U.S.Fish and Wildlife Service(USFWS)under Section 7 of the ESA. The Sponsor's Project Manager must review the DSR(Attachment A)prior io starting construction and comply with all applicable ESA restrictions on construction activities identified in the DSR or included in U.S.Army Corps of Engineers (ACOE)Section 404 Permits for the project. NY-April 2013 Page 5 of 15 i I C. National Historic Preservation Act Compliance—Construction contracts awarded by the Sponsor must incorporate all cultural resource requirements as determined by NRCS. d. National Environmental Policy Act(NEPA) Compliance— The Sponsor is responsible for compliance with all NEPA requirements. The Sponsor's Project Manager must review the DSR prior to starting construction and comply with NEPA restrictions identified in the DSR. e. New York State Environmental Quality Review Act(SEQRA) Compliance—At sites where emergency watershed protection measures cannot be installed under authority of a New York State emergency permit, the Sponsor is responsible for compliance with all SEQRA requirements for protecting designated resources as required by the New York State Department of Environmental Conservation and the SEQRA-designated Lead Agency for environmental impact review. f.. New York City Department of Environmental Protection(NYCDEP)Stream Management Program(SMP)Compliance- When completing emergency watershed protection measures on projects located on resources administered by the NYSDEP SMP or for projects funded(either fully or partially)by the NYCDEP SMP,the Sponsor is responsible for compliance with SMP design documentation and quality standards identified by the NYSDEP. g. Acquire Real Property Rights-The Sponsor shall acquire all needed real property rights(land and water),permits, and licenses in accordance with State and Federal laws at no cost to NRCS. The Sponsor shall provide certification(signed NRCS-ADS-78 (Attachment G))that real property rights have been obtained for the works of improvement described in Section II above and for access and staging area rights for construction of these works of improvement. The ADS-78 form shall be supported by an attorney's opinion attached thereto. Certification shall be provided to NRCS prior to solicitation of construction bids for installation of the works of improvement. All costs of obtaining property rights will be borne by the Sponsor. In accordance with EWP program regulations,NRCS cannot pay for these costs nor can they be counted as a cost-share contribution by the Sponsor. h. Preliminary Design Review-The Sponsor shall,prior to final design, submit for NRCS review and comment, the preliminary design report,preliminary design,construction specifications, and drawings prepared in accordance with standard engineering principles and design parameters set forth in the pre-design conference. i. Operations and Maintenance(O&M)Plan—he sponsors shall modify the generic O&M Plan (Attachment C) to be site specific and submit it to NRCS for review and approval. All costs of operating and maintaining the site will be borne by the Sponsor. In accordance with EWP program regulations,NRCS cannot pay for these costs nor can they be counted as a cost-share contribution by the Sponsor. j. Quality Assurance Plan(QAP) -The Sponsor shall,prior to solicitation of construction bids, submit for NRCS review a project-specific QAP. The QAP shall outline technical and administrative expertise required to ensure the works of improvement are installed NY-April 2013 Page 6 of 15 in accordance with the pians and specifications,identify individuals with the expertise, describe items to be inspected, list equipment required for inspection,outline the frequency and timing of inspection (continuous or periodic),outline inspection procedures, and record keeping requirements. k. Final Design-The Sponsor shall, upon receiving comments from NRCS,prepare the final design including a project report,construction specifications, and drawings in accordance with standard engineering principles and design parameters set forth in the pre-design conference,NRCS's review or preliminary plans,and the QAP. One set of the final plans and specifications shall be submitted to NRCS for functional review and concurrence prior to solicitation of construction bids. The final construction plans and specifications shall be signed and sealed by a Professional Engineer registered in the State of New York. 5. Engineering and Construction Performance a. Licensed Professional Engineer-The Sponsor shall ensure individuals and/or organizations providing engineering services employ a licensed professional engineer who directly supervises the staff performing the services or who serves as a Principal Engineer. b. Document Certification and Sealing-The Sponsor shall ensure any designs, drawings and specifications submitted for a functional review to the NRCS Engineer meet NRCS standards and are sealed by a licensed engineer. The documents will be certified as follows: "To the best of my professional knowledge,judgment and belief,these plans (or this report, etc.)meet applicable NRCS standards." This certification statement will be signed and sealed by the licensed professional engineer. C. NRCS Functional Review-The Sponsor agrees to provide the design report,project design plans,construction specifications, O&M plan,QAP,and engineer's cost estimate, to NRCS Engineering staff for completion of a functional review. The NRCS National Engineering Manual (NEM) [505.03(b)(3)] (refer to NEM.website: http://www.info.usda.gov/CED/ftp/CED/NEM.html)directs engineering review of the following to assure compliance with EWP program requirements: i. Proposed works will achieve the objectives identified for-the project; ii. Applicable practice standard criteria are met; iii. Proposed works are in compliance with applicable State and Federal programs; iv. The design report addresses hydrology,hydraulics, and sedimentation as applicable to the project; V. A QAP is prepared and includes a final constriction inspection plan for inspecting work in progress. When completed provide a final inspection and certification (performed by a NYS licensed Professional Engineer) of full completion of all planned works; vi. A technical review as defined in NEM.511.05 is not required. d. Responsibilities -Items of concern identified during the functional review will be identified in a written report provided by the NRCS Project Manager to the Sponsor. Design plans and/or specifications that are identified by NRCS to be unacceptable will NY-April 2013 Page 7 of 15 5 be returned to the Sponsor for revision. The Sponsor bears the responsibility for ensuring that contracted architectural and engineering firms possess the skills required to successfuIIy and efficiently perform the project work to MRCS standards and specifications, and that payment is made only for work performed in producing acceptable products. e. Construction Oversight-All construction in the field will be performed to comply with Sponsor,MRCS, and Regulatory Agency plans, specifications, standards,and special conditions including: i. If the Sponsor's contractor has not completed the contracted works in compliance with the plans, specifications,and special conditions and NRCS standards, the NRCS Project Manager may decline payment under this Agreement until all deficiencies are corrected and certified as completed by the Sponsor's Project Manager and noted as such in the Final Inspection Report. ii. Permit Requirements-It is the Sponsor's responsibility to insure that all work is performed in accordance with permit requirements.. If the Sponsor's contractor is not completing work in accordance with permit requirements,a Permitting Official may issue a stop work order. In such instances,the Sponsor is responsible for ensuring all deficiencies are corrected and in compliance with permit requirements prior to resuming work at the project site. Any additional costs resulting from permit non-compliance will be the responsibility of the Sponsor. iii. OSHA Safety Regulations-All contractors on NRCS assisted projects are required to perform their work in accordance with OSHA regulations,NRCS Supplement to OSHA Parts 1910 and 1926 (Attachment F), and the Contract Work Hours and Safety Standards Act(40 USC 327-330)as supplemented by Department of Labor regulations (29 CFR Part 5). The Sponsor is responsible for checking the contractor's compliance. The Sponsor will notify NRCS in writing of all accidents and/or injuries that occur on the NRCS assisted project. f. Construction Inspection/job Diary/Photographic Record-The Sponsor will provide construction inspection in accordance with the inspection schedule provided in the Project QAP. A daily,written Job Diary of activities throughout the entire construction period shall also be maintained documenting contractor activities,construction progress,on-site technical inspections and certified percentage-of-completion data used to monitor progress at the project site. The Job Diary should also include decisions and modifications made, significant discussions with the contractor regarding deficiencies and deficiency corrections made by the contractor, and all activities relating to change orders. In addition,photographic documentation should include a complete diary of activities from preconstruction through final inspection and should comprise a composite of the weekly photographic documentation provided during the construction phase of the project. The photographic record must also include a set of final photos that shows all completed project work sites with photos taken from similar vantage points as the original pre-construction photos. NY-April 2013 Page 8 of 15 g. Construction Site Access-The Sponsor shall provide NRCS technicians and engineers access to the construction site at all times prior to and during construction. Site visits may be performed on a random or regular basis(as required by each particular project) throughout the plan development and construction phases of the project,up to and including the final inspection. h. Removal or Relocation of Utilities-The Sponsor will arrange for and pay for any necessary location,removal,or relocation of utilities. All costs of removing or relocated utilities will be borne by the Sponsor. In accordance with EWP program regulations,NRCS cannot pay for these costs nor can they be counted as a cost- share contribution by the Sponsor. i. Notification of Significant and Unforeseen Events-The Sponsor shall immediately notify the NRCS Project Manager of significant and unforeseen events and conditions that impact the project. The information can be transmitted either 1)verbally, if the issue is time-sensitive,and with a written notice documenting the conversation submitted to MRCS within 24 hours of occurrence; or 2)if the issue is not time- sensitive,in writing and within 24 hours of identifying any of the following conditions: i. Problems,delays or adverse and differing site conditions that will materially impair continuation of the project or the Sponsor's ability to achieve full completion of the approved watershed protection measures at the project site. This disclosure must include a statement of the action taken,or contemplated, and any assistance needed to resolve the situation. u. Problems,delays or adverse and differing site conditions that will increase project costs. This disclosure must include a description of the changes that are necessary along with an accurate accounting of costs associated with the proposed modifications to the project design. iii. Favorable developments which enable meeting time schedules and objectives sooner or for less cost than anticipated or developments producing more beneficial results than originally planned. j. Deviations from Final Design-The Sponsor will obtain NRCS concurrence for any deviations from the Sponsor's design plans and specifications. Major chanes must be documented in writine with a modification to the contract and an amendment to the Protect Agreement. Every attempt will-be made to contact NRCS for verbal concurrence for minor deviations and corrections that become necessary during construction;however, construction should not be delayed to await approval of minor changes unless there is reasonable doubt on the part of the Sponsor that the change will be acceptable to NRCS. All minor changes and corrections,regardless of whether NRCS was verbally contacted or not, will be documented by the Sponsor in writing and submitted to the NRCS Project Manager and Administrative Contact within 24 hours of occurrence. Minor changes and corrections are defined as changes and corrections that do not increase project costs. k. Weekly Progress Reports -Once a week,throughout the duration of construction or other project site activities,digital images documenting construction progress will be submitted to the NRCS ProjectManager. Photos should be taken daily of construction and other necessary project site activities and should show construction methods, NY-April 2013 Page 9 of 15 subsurface materials encountered,construction problems as well as problem solutions, and any damages incurred during construction either natural or manmade. Photos will be accompanied by a narrative report documenting construction progress during the week. Submission via e-mail is acceptable. 1. Final Inspection-The Sponsor shall arrange for and conduct final inspection of the works of improvement. The NRCS Project Manager,the Sponsor, and the Sponsor's design engineer shall participate in the final inspection. A Professional Engineer registered in the State of New York furnished by the Sponsor shall certify that the project was installed in accordance with plans and specifications,contractual requirements and NRCS standards. 6. Post-Construction a. As-built Drawings-The Sponsor shall complete as-built drawings for the project. A copy of the as-built drawings will be submitted by the Sponsor's Project Manager to MRCS. As-built drawings and final quantities shall be certified by the professional engineer furnished by the Sponsor and shall include the following statement: "To the best of my professional knowledge judgment and belief,this work meets applicable NRCS standards." b. Job Diary/Digital Photographic Record- Upon completion of the project,the Sponsor will provide the completed job diary as well as the photographic record in digital format(jpg)on a CD to the NRCS Project Manager. C. Operation and Maintenance—Upon completing the installation of emergency protection measures and the elimination of the imminent watershed impairment, the Sponsor will assume responsibility for operation and maintenance of all works installed under this Agreement. Sponsors are responsible for normal maintenance of the project site for the life of the project(ten years unless otherwise noted) as stipulated in the site specific O&M Plan. Normal O&M will include regularly scheduled annual inspections. Damage assessment inspections also will be performed after all major storm events. If the installed works become damaged, the Sponsor will take action to bring the protection measures up to reasonable operational standards. If the measures are not brought up to reasonable standards,the site will not be eligible for future funding under the EWP program. The Sponsor is responsible for all operation and maintenance costs. d. Dispute Resolution-The Sponsor shall take reasonable and necessary actions, including legal action,if required; to dispose of any and all contractual and administrative issues arising out of the contract(s) awarded under this Agreement. Issues may include but not be limited to, disputes,claims,protests of award,source evaluation,litigation that may result from the project, and bringing suit to collect from the contractor any monies due in connection with the contract. Any monies collected will be distributed to the parties in the same ratio as contributions are made. e. Deficient Construction Services-The Sponsor will accept liability for any damage and any additional construction costs incurred to correct problems arising during or NY-April 2013 Page 10 of 15 after construction resulting from deficient construction services performed by or through the Sponsor. f. Future Liability—The Sponsor shall hold and save NRCS free from any and all claims or causes of action whatsoever resulting from the obligations undertaken by the Sponsor under this Agreement or resulting from the work provided for in this Agreement. The Sponsor is responsible,without recourse to NRCS or USDA,for the settlement and satisfaction of all contractual and legal issues arising out of arrangements entered into between the Sponsor and others to carry out approved project activities. Matters concerning violation of law should be referred to the Federal,State,or local authority having proper jurisdiction. g. Record Keeping—The Sponsor shall retain all records dealing with the award and administration of contract(s)for 3 years from the date of the Sponsor's submission of the FINAL Request for Reimbursement or until final audit findings have been resolved, whichever is longer. If any litigation is started before the expiration of the 3-year period,the records are to-be retained until the litigation is resolved or the end of the 3- year period,whichever is longer. The Sponsor shall make such records available to the Comptroller General of the United States or his or her duly authorized representative and accredited representatives of the USDA or cognizant audit agency for the purpose of making audit,examination,excerpts,and transcripts. 7. Payment a. The Sponsor shall accept all financial and other responsibility for excess costs resulting from their failure to obtain or their delay in obtaining adequate land and water rights, permits,and licenses needed for the works described in Section II. b. The Sponsor shall pay the contractor as provided in the contract(s)and submit to NRCS for reimbursement on Form SF-270,Request for Advance or Reimbursement, with supporting documentation. Reimbursement for the FA and TA must be documented separately as described in Section III,paragraph 2, a and b. 1V. CONTACT INFORMATION Town of Southold NRCS Project Manager Project Manager (Name t `rte Liz Camps (Title) €f—JI&-F District Conservationist (Sponsor) 1 64— USDA NRCS (Address)��-zl 423 Griffing Avenue (Address) N � —0 Riverhead,NY 11901 Phone: { ,15 WO Phone: 631-727-2315 Cell: 6 3 l — q7-6 - q"0 Cell: Fax: - qo I Fax: 631-727-3160 Email: e. nk— Email: liz.camps@ny.usda.gov NY-April 2013 Page 11 of 15 Administrative Contact Administrative Contact (Name) hi Laureen M.Eipp (`ntie) Contracting Officer (Agency NaUSDA NRCS -(Address) i`�© t 441 S.Salina Street,Suite 354,Room 520 (Address) Q J(22 - 021- Syracuse,NY 13201 Phone: (omit - 3 Phone: 315-477-6522 Fax: 17_�] s-& x Fax: 315-477-6560 EM a: S fit, Email: laureen.ei @n .usda. ov V. MRCS RESPONSIBILITIES AND OBLIGATIONS 1. Funding and Cost Share- a. Cost Share TA-Provide-the value of the Sponsor technical assistance not to exceed 7.5 percent of the actual cost of constructing the emergency watershed protection measures described in Section 11. This cost will not exceed 138 922.50. b. Cost Share FA-Provide 75 percent of the actual cost of constructing the emergency watershed protection measures described in Section H. The cost to the NRCS will not exceed$1,389,225.00. 2. Proiect.Manager-Designate an individual to serve as liaison between the NRCS and the Sponsor. The major duties,responsibilities and authorities of the MRCS Project Manager will be to review and concur with specifications and drawings for the works to be installed to repair damages described in the DSR, assist in the final inspection of the works of improvement,certify along with the Sponsor's Professional Engineer when all work has been completed according to the specifications and drawings,review the SF-270 and supporting documents,and facilitate submission of the SF-270 and supporting documents to the NRCS Administrative Contact for processing reimbursement. 3. Procurement and Contracting-NRCS will not be substantially involved with the technical or contractual administration of the contracts entered into as a result of this Agreement,but will provide advice,counsel and direction as needed 4. Pre-Construction a. Assist Sponsor and Sponsor's engineer in establishing design parameters and approve and concur in same as set forth in Section III,paragraph 4. This includes review, comment and concurrence on draft and final plans, specifications,O&M plan, and QAP. b. Assist Sponsor and Sponsor's engineer in preliminary NEPA compliance review(also SEQRA when applicable at large restoration projects)in identifying potential project impacts to Federal and State protected biological,historical and cultural resources. When appropriate, the NRCS Project manager will coordinate technical assistance in consultations with responsible regulatory agencies to identify appropriate avoidance, NY-April 2013 Page 12 of 15 minimization or mitigation measures for the protection or restoration of critical resources. 5. Post Construction and Payment a. Upon notification of the completion of construction,participate in the final inspection. b. Review the Sponsor's submission of all requested supporting documentation,including the final inspection report,certified as-built plans and final quantities,complete digital photographic diary and accompanying job diary, and properly completed SF-270 Request for Advance or Reimbursement. MRCS shall promptly review the Sponsor's performance to determine if it has met the requirements of this Agreement. c. The NRCS Administrative Contact will receive the assessment of work completed and supporting documentation relative to allowable funds requested and,if the request is reasonable,approve and process payment to the Sponsor. In the event there are questions regarding the SF-270 and supporting documentation,NRCS will contact the Sponsor in a timely manner for clarification. VI. IT IS MUTUALLY AGREED: 1. This Agreement becomes effective upon the final signature of the NRCS State Conservationist on the NRCS-ADS-093 form. All work required under this Agreement shall be completed in accordance with Section III. 2. That each party shall review,comment,and concur with the construction plans, specifications, quality assurance plans and project administration responsibilities as identified in Section III,paragraphs 4,5 and 6 of this Agreement. 3. The furnishing of financial and other assistance by NRCS is contingent on the availability of funds appropriated by Congress from which payment may be made and shall not obligate NRCS upon failure of the Congress to appropriate funds. 4. NRCS may terminate this Agreement in whole or in part when it is determined by NRCS that the Sponsor has failed to comply with any of the conditions of this Agreement. NRCS shall promptly notify the Sponsor in writing of the determination and reasons for the termination, together with the effective date. Payments or recoveries made by NRCS under this termination shall be in accordance with the legal rights and liabilities of NRCS and the Sponsor. 5. This Agreement may be temporarily suspended by NRCS if it determines that corrective action by the Sponsor is needed to meet the provisions herein. Further,NRCS may suspend this Agreement when it is evident that a termination is pending. 6. The Financial Assistance provided in this Agreement may be increased based on necessary and eligible cost increase with mutual,prior agreement and,formalized with a signed Amendment.' W-April 2013 Page 13 of 15 t 7. By signing this Agreement the Sponsor assures the NRCS that the program or activities provided for under this Agreement will be conducted in compliance with all applicable Federal civil rights laws,rules,regulations, and policies. 8. Privacy of personal information related to natural resource conservation programs will be in accordance with Section 1244 of title II of the Farm Security and Rural investment Act of 2002(Public Law 107-71, 116 Stat.235) 9. Employees of NRCS shall participate in efforts under this Agreement solely as representatives of the MRCS. To this end,they shall not participate as directors, officers, employees, or otherwise serve or hold themselves out as representatives of the Sponsor or any member of the Sponsor's Organization. They also shall not assist the Sponsor or any member the Sponsor's Organization with efforts to lobby Congress,or to raise money through fundraising efforts. Further,MRCS employees shall report to their immediate supervisor any negotiations with the Sponsor,or any member of the Sponsor's Organization, concerning future employment and shall refrain from participation in efforts regarding such party until approved by the NRCS. 10.Employees of the Sponsor shall remain its employees while carrying out their duties under this Agreement and shall not be considered as Federal employees or agents of the United States for any purpose under this Agreement. 11.Should inconsistencies arise between language in this Agreement and the attached plan of work,the language in the Agreement takes precedence. VII. ATTACHMENTS TO AGREEMENT The following attachments are incorporated into the Agreement: Attachment A: Plan of Work- DSR(s)S-TSH-01 Attachment B: General Terms and Conditions for Grants Cooperative Agreements Attachment C: Generic Operations and Maintenance Plan The following attachments are provided as reference and resources for this Agreement: Attachment D: 7 CFR 624,Emergency Watershed Protection Program Attachment E: 7 CFR 3016-36,Procurement Attachment F: NRCS Supplement to OSHA Parts 1910 and 1926 Attachment G: The following Standard Forms to be submitted by the Sponsor: NRCS-ADS-78 Assurances Relating to Real Property Acquisition SF-270 Request for Advance Reimbursement SF-425 Federal Financial Report Page 14 of 15 NY-April 2013 VII. APPROVAL The United States Department of Agriculture,Natural Resources Conservation Service and Town of Southold'execute this agreement as of the date of final signature by USDA/NRCS on NRCS-ADS-093 form,Notice of Grant and Agreement Award.The signatories represent that each is duly authorized to bind their respective organization to the terms of this agreement. By signing the NRCS-ADS-093 form,the Sponsor assures USDA that the program or activities provided for under this agreement will be conducted in compliance with all applicable Federal civil rights laws,rules,regulations,and policies. This action was authorized at an official meeting of Program Funds:Authorized rgLV,:4 4 NamelTitle Date on the 1/7P�day ,2013 at t FNM F ds A railable. /� ! Attest: Namel de, off' Date 3 Title: sc>,[i�r uCdo+C Date S t 1 Amount:$ � ! t LI 7i C©0 Account Code, n1 R } eS r 3 3 r X)< 13 XX r Page 15 of 15 NY-Apri12013 ATTACHMENT A DAMAGE SURVEY REPORT(DSR) i United States Department of epa Agriculture Natural Resources Conservation OMB No.0578-0030 Service OMD No.05 20 DAMAGE SURVEY REPORT(DSR) NRCl f •"-.Einergenq Watershed Protecfion Program-.Recovery . MRCS Entry O Section lA Eligible: YES NO l" Date of Report: 04(08/2013 Approved: YES f" NO F Funding Priority Number(froom Section 4) 4 DSR Number• L)SR-S TSH-01 Project Number: 6054 Limier Resource,Arm. YES (- NO V Section In Sponsor Information Sponsor Name: Scott Russell,Town of Southhold,Town Hall,53095 RTE25 Address: A.O.Box 1179 I CitylStatelzip: Southhotd,NY 11791-0959 TelephoneNumber. (631)766-1889 Fax: (631)7654823 • - Section iEC Site Location Information County: Suffolk gtatm New York Congressional District: 1 Latitude: See Attached Longitude: SeeAttached Section: Township:-'10A Ratge: Ulm Coordinates: � Drainage Name: Cutchogue Harbor&tang,Beach Bay, Reach:WA Damage Description: Bike Repair Section 2D Site Evaluation All answers in this section must be YES in order to be e!i 'ble for EWP assistance. Site F.li 'bili 0 , Reanarks Damage was a result of a natural disaster?* Recovery measures would be for rdnoff retardation or soil erosion rovention?* Lr f Threat to rife aadlor property?* Event caused a sudden impairment in the watershed?* El f Imminent threat was created by this eveflt?** For stractutat repairs,not repaired twice within tdn years. Site Defeasibif' Economic,environmental,and social documentation adequate to caereeneattZaBo Positive warrant action Go to pages 3.4.5 and b***) 0- Pioposed actiop tdMHddW iab1d?(Gd td Page 9***) Have all the appropriate steps been taken to ensure-drat all segments of the affecled population have been informed ofthe EWP program and its possible eff"! YES [ N0 Comments: *.Stbory '*Regulation *k*DSR Peg=3 through Sam required io supporttho decisions recorded on Us summary page.If additional space is needed on this or any other psgo in this form, add appropriate pages• Iof14 Approved 712005 f - 1 t I `v DSRS••TSH-01 DSRNO: Seetiod 1H Proposed Action Describe the preferred alternative f om Findings:Section 5 A. FabftReaft2wEmbmtanwt sardva7bouswkwagemkforiiweft - i r Total iustatlation cost identrf ed m this DSR: Section k 4-1-86Z300.0 � - Section 1F IvXtCS State Office Review and Approval i w4med By; _ bate Reviewed: i State BWP Program Manager ` Approved By. Date Approved: State Conservationist _ a I PRIVACY ACTAND PUBLIC BURDEN STATEMWT I MOTE The following statement Is made in accordance with the Privacy Act of 1974,(5 U.S.C.662a)and the Paperwork � I Reduction Act of 1995,as amended.The authority lbr requesting the fdmft inio mff p Is 7 CER 624(EWA)and .{ Seeen Z6 of the Dict Control Act of 1950,Public Law 81.516,33 US.C.7O1ir4;and Section 403 of the Agricultural CWA Act of 1978,PubticLaw95334,as arnended by Section 382,of the Federal Agriculturetmprovanterd and Refam Act of 1996.Public Law 104-127.16 U.S.C.2209.EVP.through local sponsors.provides emergency measures for mvnoff retardation and erosion control to areas where a sudden impainnent of a watershed thmatens fie or property.The Sezary of Agriculture has delegated the administration of EIV to the Chief orf1RCS on stdtp.'Wbal and private lands. r Sigrrtr>.g this form indicates the sponsor conc=and agrees to provirde the regional cost-share to implement the SW recovery measures)determined eiiglbte by NRCS under9te terms andcormditions of Uro program autiwdgr.Falttae to provide a signature wID result In the applicant being thriable to apply for or receive a grantthe appiicable program authorities.Once signed by the sponsor,this irhfonnation.may not W provided to other agencies.IRS,Department of I Justice,or other State or Federal Law Enforcement agenclM and in response to a court or administrative tribunal. The provisions of criminal and civil fraud statutes,trrcluding 18 U,S.C.286.287.371,641,651,1001b..15 U.S.C.7141%and 31 , tt S.C.S729 may also be applicable to the brfonnatlon pratrided.According to the Paperwork Reduction Act of 1995,an agency .• may not conduct or sponsor,and a peow isnot required to respond to a collection of informallan untess It displays a valid OMS control number.The valid OMB control number for this information collection is 0578.0030. The time required to complete this brrarmarion collection Ls estimated to aveM9011711.96 min uteWhours per response,including the time for reviewing instructions, searng existing data sources,field reviews,gathering,designing,artd maintair8rtg the data heeded,aril campletfn9 and chi reviewing the collection Infarmallum USDA NONDiSCOJMINAMON STATEMENT °'itme U.S.Department ofAgricufium(USDA)prohVAs dloodmination in all qe programs and activwes on the basis of race,calor,national origin,age.disability,and where appticabld,sex,martial status,famitiat status,pamnial status;' religion.sexual orientallon,ganalle Informatfon;political beliefs,reprisal,or because all or part of an kid ividual'aktoome,14 '+ derived from any public assistance program. (WI al prohibited bases apply to aft programme) Persons with dtaabtliles who mquireattemallve mean$for communication of program ipfonmation Mrallte,large pfint,atdlotape,etc.)should contact USDA's TARCETrenter at(202)720--2800(vode and TDD).to file a complaint of;dlsedminalton,write to USDA,Director,Me" Qf Civil Rfghts,.1400 Independence Avreriue,SW Washington,DC 2026"410,or call(800)79$3272(voice)or(202) 720.6382(TDDJ USDA is an equal opportunity provider and employer. _ . .. _ Civil Rights Statement of Assu ance - The program or acgvi6es conducted urufer this agreement wit be in compliance with the nondiscrfrninagon provistons contained in the Titles VI and VII of the Civil Rights Act of 19%.as amended;the ChtJi.Rtghts Restoration Ad of 1987 (Public Law 100 259);and other nandisc dirttraiton statutes:namely,Section 504 of tate Rehabllitation Act of 1973,Tltie IX of the Amendments of 1972,the Age Discrimination Act of 1975,and the Ametiemwith Disabiliges Act of 1950 They will also be in accordance with regulations of the Secretaryof Agriculture(7 CFR 15.15a,and 15b),which provide that no person In the United States shall on the grounds of race,color,national origin,gender,religion,age or dhsablilbA be excluded from participation it%be denied the benefits of,or otherwise subjected to disairninatfon under any program or acb*receiving Federal farartaal assistance from the U.S.Department of Agriculture or any agency Uvereof. i 2of14 Approved 7/2005 . t 4 2 e�4� wrrt -`'' �"jt rr -� ,-"•y y r�- -•'� -3,,.,-�"`s-'}7a' �`..t^ rN'^F"!-Ys-'��x TGF�'1��:�: �i ✓5�/,� z' ,�., YJ C .� P-:� '?'.'S��"F'�.N.{�jX�• °�c�� ..�'�;w,+F a �s �. �E[2" i F -7' t 1 � � 1p�C} �'. ,y__..tel j..,T �-,'_�'r _-y�li f p�> r'^• -.c.-+r _�qUv,,., 1 �'�,�(•`',,SEv4. usnx' :aels;; Ri to-g'? }5�''��F 4 ✓ til ' �sS " {� .✓ x�-t r JC„ „n, ? L�. ....... � ;,,,�..r�z2::..a_.5,�,.i rus:�`�...�,.<E„c�-" `^54,.�,��,�x,.�...:.r`, 'C,.�.}�..rti�°Y3_.-,��`T��•i.�l��7�u��w��i}��2-��gr,'��•n3 pgi't,•,4•''":.1 j s4 Trti is.t�r't>3.Ch�'•L.f•kfi" 7'r » r -r5 c sem- ut,-,a `r'�1 Y Tf-.,r r >.:f''%v+ld!t....�`.�? r.�..'i .�,. t �”U�,., rt. .�`'„c : .c`•c furth 'degradation offte and sed risk for arosion -_�— - .�-..70:.-•._<•s,:.w 1..�`�'',�_ .c..;c•.,,�.....s.._Wit`.:: --'`; 4� S�rR ,a �.-”-- �^"';, t'p ------ _-L._._ +}�}�LV'^4T16y�i •r .r 51' ,G SCS h Y d 2"'`'fii`S,1'' sl '_i r ci—r+'Gj •s?s ✓ U. �-,r�S ms`s.}., x•.d,' ,f �`-x",r�L r1`H�•'vr -4 wCf'{ -r-5-3'yT3y�wr L�--� ��!-3.�.•��... _ ..i3.:...�,....M....,:..�s'u...d'a'i 1..e_Sw'...' =:FeY.:-..F,.,.'Y.t+ar..�,_ me��.�+.�:`u�..r..��...:X5�,.. ■s .v,� t4,hs�dyAt 'tc�` ,`ye. r+ 1. re'sRUB '} tr,,,.$- 4... ,c%_ � ,,,.✓ r.£ue�,u'as�.�F..i?,�fi�W.,:uW �k"Sa3.'tar�.`�..�'..i,..,ri:uu.t....;,s-i:c_•3.s .v •k .'! ,..Y�.s��.;..t.,_;es ifte materials may erode!nto marsh degrade habidats impact resident populations Fulurestorm ruesmay of dikes to "mmen.repair of dikes to Ve Uk',TMiTMVT!�' damage protected resources stabliereandppre nterosion.' stabilize and prevent erosion r,_�.�C.Y,��r^x4•�.��•�;� �f�._:��pro- :��.;`_"x��L�r�9M'L r+sry�cxr��c��-.�.'�'��,ztF .Y,w�.p �� ;�C�§ C�F- _.. 7':-t z h.��t '-•-ci: �.,�.' `,, s. �. �y,� -r. . ryr'��'.T��'i. ,UJ ..�•x-•i�ty s,.r �5�,... f: .;sr_.�,L� �' ,�.��Y :r:_z�.�s:�.,2�3^�: r �,�C:. .�.. S•.e�, l i s�ri3 t �-�{�"��.•�::5.tt '--�ti,a�'��•rr�' DSR N0: 8-TSh-01 Section 2E Special Environmental Concerns Resouree Existing Condition Alternatives and Effects' . Consideration Pro sed Action- No Acdbn Alternative Sedimentation of Coastal sedimentation reduced due to continued contribution of sedrmerdation redaeed due to Clean Nater ACt Watets and Adjacent Wetland channel and bank stabilization sediment channel and bank staWltz . Habitats Waters of the U.S. �t damage In Coastal Erosion Long Tern Decease in Adverse Increased Adverse Effects and Short Temp Decrease in Adverse ( Coastal Zone Hazard Areas and risk of feather Effects to Coaster Resouroes Impacts Effects , damage to Areas of Special (significant coastal fish and Mana trent Areas Concern ILWRP) wifdtife habitat) Not Applicable NotAppikable Not Applicable Not Applicable ----- ! Dike is located In previously - No effect No effect No effect disturbed area.New Impacts to j OR are not occurring. Cultural Resources tISMandNYSNsted- Poterdlattempereryadvefae PefanUallong left adverse Fotetiflattemporaryadvetsa, Endangered and Emdangered/fhreafened impacts to residerdpopulatioms bnpacts to habitats and resident impacts to resident populations' y Species occurin dose prcaims ity population Threatened aS eeies - NotApplicable Not Applicable Not Applicable NotApphable Environmental Justice Important shellfish and finfish Dike stabilization Wit give long Potential long term adverse Dike stabilization will give shod Essential Fish nursery habitats present In tens protection to decrease Impacts to sjrellfish habitats and tens protection to decrease adjacent Net marshes and bay adverse sitationlmpactsto ffnfishnurseryhabUats. adverseslltatlontmpactsto Habitat waters adjacent nursery habitats. adjacent nursery habitats, NYS DEC,US.Fish&Wildlife Complete Informal consultation Long term adverse Impacts to Coniplete Informal consultation Fish and Wildlife Service;U.S.Awry Corps of with appropriate regulatory habitats and residentfrsh and with appropriate regulatory Engineers sgencyt persotmel confirm ivildfife populations will cordlntre egenry pelsonnel,aotrtina I COOPdlnatl6n pernits required for projectwork. 0—is requkect forprojectWotk NfA NIA WA WA Floodplain -t Mane emenf Not a major Issue at the Project Oeotetdile armoring witl reduce Disturbed ares subject to Lads of amtoring will not reduce Side, risk of invasive species colonization pressure,long term tisk of invasive species colonization In disturbed areas. adverse effects are possible colonizatim In disturbed areas, Invasive Species No Adverse Effect adverse effects are possible- IDdsting damages wiil not have Shod tern impacts related to No Adverse impacts Short tern impacts related to an appreciable aged upon the construction adObs bry occur consructlon activitlesmy occur. • breeAfngauxessofie5ldent ' Migratory Birds. breeding migrants. Loss of matedal horn damaged No Adverse Effects,dike Continued loss ofdike materials Lack of amdring for dikes will dAcas my bo translocated Ido armoring will provide long term may increase adverse impacts not Provide long term Protection adjacent Marsh and Bay protection against erosion of dike (slltation)to adjacent Marsh agairist erosion and translocation NatnralAreas habitats. materials Into adjacentmarshbs. habitats ofmatenalstoadhaeentnta%hes. , Increased rkkfor majoradverse No Impacts.Dike repelrvdl Long term adverse impacts,coil' No Shod term Impacts.Lack of prime and Uni ue Impacts,including coil provide long temp otecif for sallnUation and erosion,from amroring vdl,not protect against tl sa®nization and erosion prime prime farmland soils storm surgasthat wil frequerdly eroson.Adverse impacts to 1 F.umlan farmlands breach the damaged dikes. prime famdand In the long term. NetApplloeble' NotApplicabia Not,AppUoable NotAPpricaWe I Ri arian Areas 1 Minimal impact Minimal impact Minimal Impact Minimal impact Scenic Beauty Loss of material from damaged Access to work sites will follow Continued Ions of dike materials Access to work sites will follow dikes my be translocated into existing maintenance routes,no may increase adverse impacts existing maintenance routes,no 1 adjacent wetland habitats adverse impacts to a'djaoent• (411tation)to adjaourtwelknd- adverse impacts to adjacent Wetlands wagands will occur habitats wallends wrtl occur NolAppgmble - NotAppticable Not Applicable Not Applicable Wild and Scenic Rivers Completed By: Karl Strause,Biologist Date: 04/20/2013 4of14 i Approved 7/2005 i DSRNO: DSR-S TSH-01 i Section2R Economic This section must be completed§X each alternative considered attach additional sheets as necessa FurureDma.-Faeeor(%j Near Term Damage Reduction Pro 'es Protected rrvate i Terry Farms $325.000.00 10th 325 000.00 lao m Farms, 750.000.00 loch 750.000.00 = Ddfiwwood Farris 1.150.000.00 100$ 9,150,000.00 f See additlonai under other6 i Pro 'es Protected lic 0% i 0% 0% Business Dosses 4V 00l i Other ft ttatn Fruit Fant $1.150.000.00 $1.150.flO0.t35 Salt Air Farms 2,325.000.00 loop 2,325,000.00 f 0°Jo '0% . Total Now Term Da,nM Redaction �0,706XOAo Net Benefit flotal Near Term Damage Reduction minus Cost froth Section 3 $3,847,700.0.;[- Completed By: REY pate; 04/08/2013 �. Notes; • 1. 5of14 Approved 712005 Section 2G Social Consideration This section must be completed'by each alternative considered (attach additional sheets as necessary). •t _ t r YES N8 Remarks I E Has there been toss of life as acesult of ' the watershed isnryairmen!? -.1 E _� Is there tho potential for loss of life due to i damages from the watershed impairment? L-•l RIJ Has access to a hospitsl or medical_facility L S baa impaice�l 6y wtttecshe #paim�eut? t Haft corgraw ty as a whole been �} adversely,impacted by ft watershed1 jMpe&ment(Mmdpropertyses ceatoy TRI i operatei»anorrateagacity) - � - - i Is there a lackerhas ftwbeen areduction ' of public safety due to watershed A impairment? ` 04/0812013 Completed By: REY Date: ..l l .... .. ..... _ -- - i 6of1k Approved 712005 i DSRNO: DSR-S-TSH-01 Section 2H Group Representation and Disabil ty Information i i This section is completed o for the preferred alternative selected. GMUP lie reseatation Number American Indian(Alaslca Native Female His 'c American ludiadAlaska Native Female Non-Ills anis American Tndian/Alaska Native Mate Ifispanic AmencanIndian/Alaska NativeMale Non-FI'ts anic Asian F ak His anic Asian Female Non-His anic Asian Male Hispanic Asian Male Non-A anic Black or African American Female Itis anic } Black or African American Female Non-Hispanic Black or African American Male lEspanis Black ortlicanAinericanMaleNott s emit Hawaiian NattveJ Fateslander Female M wanic HawaiianNativeiPadfic Islander FecaaleNon-Hi SP anic Hawaiian NativeMacific Islander bole 'c J Hawaiian Native/Pacificislander Male Non-Mspanic WhiteFemaleHls 'c yfThiteFemale Non H' 'c - White Male FREic White We Non-Mpanic ILI Total Grou Census tract(sj Completed By: Date: 7of14 j Appy 712005 l " .i s ' DSR NO: =1 I Section 2L Required consultation or coordination between the lead agency and/or the RFO and another governmental unit including tribes: F&ements,permissions,or permits: - + Land rights NYSDEC Article 15 Hurricane sandy General Permit(GP-0-12-006) NYSDEC Notice of Intent(filed to initiate work under GP-0-12-006)- } NYSDOS Consistency Review(Coastal Assessment Form completed by NYSDEC) CWA Section 404,NYSDEC Article 15 Wetlands Permit or TO Southland Wetlands Permit(per consultation) <¢ — Notification-of Utilities(if necessary) ( Informal consultation with NYSDEC and USFWS for EndangeredfThreatened Species. Mitigation Description: Mming,of construction will take place so as to avoid or minimize potential adverse effects to protected animal'species in • the vicinity of the site. Equipment storage and refueling stations,will tie located a safe distance from protected'v ietiand areas..Access to work sites will be through established maintenance routes and will not requireadditional disturbances to '( adjacent wetland areas. Agencies,persons,and references consulted,or to be consulted: r NYS Department of Environmental Conservation(Endangered/Threatened/Rare Species) . A NYS Historic Preservation Office •� USArmy Corps of Engineers(wetlands) f Suffolk County Soil and Water Conservation District 4. Suffolk County Department of Parks,Recreation and Conservation(E/T/R species,Wetlands) U.S.Fish and Wildlife Service(Endangeredrtbreatened Species) Private Landowners Town and County Highway Departments Town of Southland(Coastal Erosion Hazard Area Coordinator-Permitting) E , ji 1 I I .i I �J - I 8of14 Approved 7/2005 RCS.... UNITED SPATES DEPARTMENT OF AGRICULTURE NY-MRCS-PPM-W-8A (NY Supplement too DSR) NSection 3-ENGINEERING SfTE EVALUATION RSR Na DSR S-TSH41 ; Y Date: OdCompleted by: RE10812013 t i . Section 3R Locate and mark the beginning and end of the project reach at stable banks. See 8112011e4 maps, Length of project reach: See attached eng'neetista eslnrrate — 1 Nowwll the bank stabir'gation'be keyed back into the stable bank sections? NIA Include ft length h7 the total. � ' 3 Locate a bendwark and grade controL Determine the average slope of the reach. Swenpi��estimate. 1 e a�t dW enauhrhe Vgl ana sus. ` Determine the typica!'rxoss section upstream and down: Se.�..._. Determine the height of the low bank and the height of structural protection needed. See attached encnneer&tg estimate. Look for opportunities to use vegetation rather than stnrdural measures. NIA ; i' identify if a s9weir Is required in the channel to stabTwe the channel bottom. NA i • i How many sillslweirs are required? NIA what spacing? NIA ' - - 1 What depth of key is required to the toe of the slope?- TO x❑ t - t Determine if a plunge pool Is required.Size the plunge pool. W. NIA L WA D: NIA i Determine the slope of the bank needed in the protected area. Seri attached en estimate• Determine if geotexlle fabric is needed behind the structure. Yes• • F Determine esfimated quantifies of e'xcavadon,fill.deadng,and debris removal for sadon B. �enCineerirlg 85timate s Determine the needed pollution control and dewatering practices. Sediment Controls needed,Dewatering notrm:quired. Determine the need for lrafkc control or road closure. None r Make a plan view sketch that includes the following: - The'atignment of the sheambank to be repalred.and the protected structure, See armed enainee ft estimale. Theexft'sfream thalweg,north,the bench mark,and apparentlandowners. iderdif items not to be disturbed during construction(e.g.,trees,mailboxes,etG). - - Iden*debris to be removed. r Locate all utilities. ' IdenGfyspollistaging area. 1 Identify construction(units and access. Take and label photographs. See pis In agached gnging na estimate. --- Page8A 1127rM A s i i i Dam: DSII-S TSH-Di Section 3 Engineering Cost Esfimate 1 Completed By: REY Date. 04/08/2013 This section must be completed by each alternative considered(attach additional sheets as necessary). 1 Proposed Recovery Measure Quantity Units Unit Cost($) Amount($) :.� mcludin miti alloa - i Terry Farm(Dike) 340 Cy $35.00 $18,900.00 Terry Farm(Tide Gate) 1 each '$8.000.00 $8,000.00 Latham Farms 18,000 CY $35.00 $630,p00.it0 i Driftwood Farms 13,440 cy $35.00 $470,400.00 Wickham Fruit Farms '14;400 CY $35.00 $504.000.00 Salt Air Farms 5,600 CY $35.00 $196A00.00 Mobirmattton 5 each $5,000.00 $25,000.00 $0.00 $0.00 1 $0.00 $0.00 t i. $0.00 $0.00 $0.00 $0.00 $0.00 E $0.00 . i $0.00 $0.00 otal Installation Cog LEnter in Section 1F)$ 1,852,300. Unit Abbreviations• AC Acre LS _Lump Sum CY Cabic Yard SF Square Feet EA Each SY Square Yard HR Dour TN Ton LF Linear Feet Other(Specifiy) i • 9a of 14 AppwYM 712005 f DSRNO- DSR-STSH-01 i ' Section 4 NRCS EWP Funding priority Complete the following section to compute the funding priority for the recovery measures in this application - (see instructions on page 14). i i Priority Raulung Criteria Yes No Ra"g i Number Plus Mower 1.fs this an exigeney situation? L=' 2,Is this a site where there is.serious but not immediate threat ta`human life? ? 3.Is-this a site where buildings,utilities,or other important infrastructure co orients are dwatonW? 0 +ai...i 4.Is this site a hadigg priorityhad' established b the NRCS Chief? Oj '•.] The foilowk are modifiers for the above criteria Modifier a.'FlVill the proposed action or at[ematives protect or conserve federalbr4isted 9 - threatened and en ed ieaor critical habitat? b.Will the proposed action or alternatives protect or conserve cultural sites - listed on the National Leg§La ofHistoric places? e.Will the proposed action or alternatives protect or conserve prime or Yes i imporhant farmland? d.� e proposed action or RG; fives protect or conserve existing e.Will the proposed action or alternatives maintain or improve current water "` " ali conditions? Yes f<W311 the proposed action or alternatives protect or conserve umigae habitat, ,•�-:�` �-�. 4 ' including but riot limited to,meas inhabited by State-listen species,fish and - wildlife management area,or State identified sensitive habitats? ' Enter priority computation in Section IA,MRCS Entry,Funding priority number. 4C,ae { Remarks: ' i i 10 of 14 Approved 712005 i i DSR NO: M-S-TSH-01 1 Section SA Findings Finding: indicate the preferred alternative from Section 2(.linter to Sedioa IR}: Fabric Reinforced 9mbankment. Sand wig be used inside the fabdofor"fill media Ihave considered the effecb ofihe action and the adternauves an the Er1w6nmental Economia Vociai the SpeeiaiM*0 ` Conce�ris:and the exir�rorcdrruo3,circumstances(40 CFR IS08.27). MadAP the reasons staled below,thaE the aenta l Preferred afternaim seeb ,n st�eiandy analyzed in the EVP pETS,(rcferoace al,that apply) .i Chapter Chapter f Chapter. f• ' Chapter ff i Chapter �. May requim thj.preparation of an environmental The action will be assesarnent or enviroumeafai impact statement, teferned to the N4CS Stfe Office on this date: MRCS zepn'mentative ofthebSR team: Namelride: . $action SB Comaceuts: - � - c Section 5C Sponsor Concurrence: , 4RepYec_s r Dabe� Section 6 Attachments: - - ---A. LoQgohA4V-.lays--.. •— -- - - ._...•--••-----•--•----- - E a. Laiitades and Longitudes b. Repai<•Dimensions and Voittmes a individual Repair Costs d. Represea6dive Phlotos 11 of 14 RPPmvee 712005 t U.S. Fish and Wildlife Service West Creek Apr8,2013 No operational layers selected or no legend available iL ' a f£ 1' ZP �a f ',f :�..: ..i• s�t,!y�r. .p rc.G�. 3�• �_ "'++, :''. - _ -. _ +AE�vto�f R �iiite4iifa�e �.tib:•+�' ':n2�?adifE:�'MH�M'Ii,rot , ^ .t m 1A acpn . ny w4d4w�bw�b.t�, anA Mt O � 'U$eir`Ratl'�alc ` . � . • ,'.;,r «�nawkhA,4M' �rom�,ecn . w N 47,OOOW,,'-72A83 - I I Fish ss Wickham Creels i IL- '.11 W--io At "jai Wf n•v ::,•,s� :; t: r.__ �,: ,•>•a; „tNtA t.-_,•Y = AXApr 8 2013 No operational layers selected or no legend available j I t _ I - I 5 _ t I 1 ' � I i '". '•• ,tnoP"Jt�4C'L.BeM14at`7WnE�iva,3nly+•'phi` &CPIWr''S�M31691d1�i�&jvj.a`(►not ••. i,_•• J �erosioforaxamaieyotewtanbea,olfh®6wdticslmwn'onth4nw..A11 .aatlta or L4t�Aaidd thLs En oent noi=wNh.11Mt►yerm.tWtatau�q ate User R�einaiiks: iRFYla1tlydaMap�itw,b.Na . o N 49:008-W42-476 C-, orient Point.-U.S. Fish and Wildlife Service EWP .+r�. .r s•r�•r 4: ^r`r!7�•..dJi.`•1+.. •J 9raf:.t •r`.:r:..��,...t.• .t,+r�:w'y.Y. ^.!". ::a `t::•.`a•.i,,,%' i�P {•{w'• t Apr 8,2013 No operational layers selected or no legend available r✓. Tt�6f e.a b foa vwwnl tafwanw adr The um%►k4 pit.,Yh�dlMr aan(n 4 not mAenamBfortlnso,weayxWJMVWSeofew tnnEataatarmAnaAem�p,M LJ n �• _ wrtfnndoa4mdsha4hPadMon Ih�tV�thede 4 r User Remarks: i Eagle Point,Soutliold,Eagles Neck Point ' ENGINEERING.ESTIMATE FOR-COASTAL-DIKE REPAIR FROM SUPER STORM I SANDY New Suffolk,NY&Orient NY J i IIIA i Salt Air Farm: Latitude N 40059'53.17" Longitude W 72028'57.67"; Length-480', 7' height, 10' top width,5:1 slopes;5,600 cy. repair material; Estimated total repair cost$196,000. Wickham Fruit Farm:.-Latitude'N41006'24.42.".Longitude W72°28'42.07'; Length- 1204',7' height, IV-tooNldth,5.1 slopes; 14,400 cy. repair material; Estimated total repair cosf$504,000. - 1lrifttNood Farms,LLCs-`La!0tude.N41°08'31.49" longitude W72°15'25.18"; length; 1120',7' hei_ht,.10`top-width;5:f slopes; 13,44Q:cy, repair material; Estimated total repair cost-$470Ai Latham Farm's:••Lat ,N41a6817.47"Lohgitude W7?16'37.02 -Let"-650', >._ 14'-height, l0'-to_pi W' dtfi;3 lslopes;• 8,OOO,cy:repair•ihateri-1.'f$'imated_'total repair cost$630;000: :, Terry Farms: Latitude:11141.°08' :Sr-Longitude.72016`13.W; length=50_', 7' height, l0'top viriiitFo,5ftscopes;540 cyt,repair material and replace.a tidt.gate +` and inlet pipe(361-es#image); Flap•gate $9,000:400'3V P1pe.$3,000;. stamated = total repair cost$26;900;` Mobilization Costs:a.',gstl oate$25,000.- Iff The following.piciturog-are representative of all locatiains. The dike _ characteristics are sitnilar•in all,locations. 1 - -j L .1 i y l '.r S �. a ��A,�v�.-e�d�rfZ�r�z�CSs �• r i �a t 4 4 t'-��,si 5t�° F t '.; ( I•''rY"' _ .r': �, �(v�J�aJ�yFft�,�.. r 4.'. �� j'€ t / ' ti 6 i✓ r j . �t i{ -sf. t( �Y v ✓�'^�� P �1'1"_�"`-�,,,yatx "`r"z r+�i t t j' td 2 }� fir. c tba ..� •• � r�� S 4�rNj� it 3 y `s l�\ cis�i ji s.\ e�.r,1-�'tr> , 13.is�i `ryJF t�191, w+l ✓ -r .. r a s � S it r <��'':s^"'. t�} 'F-' '�.^�`"C�4`�jf �4c„l ��4��ia��`+�-�✓.1 r��s-Y/�S A✓s=ue-�•� ry s t'q\��, s ..1 µe1 a� tr fl ,y -, •? sF -� �✓ r a...•, {r 'ver s -cM ',.*• v2 A Q76 1 ° 'f UP '8rµ VON ,n :. r _ ,5—" rw�i�t''tT 4 Z �r l� ,�U�fv r�<`!t c �� r�'„' `iv.� �• .k II rs �' sy� 't. 'p w�r (-�- •sti'y ..��F z.c'. -.' � � , { �`"r�.i•(>vV�cp 71.E c 3 1 f F�>$F�Y, r -! t✓ � It 5 Vs.T'Y� �C tfyJ� �/r��..fS��r�� i I �/'.! �P f.. 'ryr r f J �. `1e1 i r �'�,•,� ic�s,llil ,;p-n `� -�.� J ,fff / 1 r 'g r` -L � 1 is �y9,3'< 'S-t ".Y �a-T n '�` ✓ .1, p-• s ! _` '-� F3:3�' �sy;,'h--.`� �`,� �'�+�1'r y, p�"tp�J�v.�� r S r T J� y-•,mss-�'S' "�. t t ),�: {�<t ^�, r '�'�'k�,.{� st},�.�_�£rf .�r,�(�,�„J yC'i.. ..� v �_ •�.� ,,.,,�.�i4Yz s- ti ✓ s 1 t,y�, �+..�7,r-iy �;.'$� ,`ar= '+!.f'... -•.1'- ''s r^.'ss �n J s < <4 E'k `�••�r�7 5' (7 'Y�'m s., '�7,r�J 1 r�' ' r Id-l!/Fy 'u✓'F',r�r � ,� �`[ �j r! aY yD.•�+ �'S 'CUr�� Jy s lni� t s� SK tMe ✓ H r i s r ✓y, t✓ �� ,,tl't ^ i\\a !� "4 �r r E �. —, �<,an.,,,,`4 � f� a 7"�T, � 7 � t 1art r � � ��'r•�c i�-- �- , r / �•�y 1 r�'.�.• t T r Xs lc"`s-G'�2? i,�s� r C •�• � ts+� �+..- 1� ��. 5 l rj�-y.`� �[j�~jfr'.t NIX/r^''Y�=c-�' �'t� ANS„ s��-.rte� c-.�..7 �_ l-•'r 'ir 1 / '' r ✓r � ' r1 s ' -� �'i �✓7 'a--(`�"�'E_,,„ ff�4.'' �'i-r-y-,pis .��. ��r # 'Z f✓r +�r a ��✓� �f a\f h �>5 y/�„�c�h is°allr�1 �r� fey t i� c ��t� ✓�! � s�'S �.c�•J 'c-;�l � �'�,;�',x-�4'�'� t 17•. a7�....... - ' e <7 t_5.��.'-t��'�i J'�'✓. .'.k+.. ��y�v�d- c .>•-'r,,-'c'�t �i{,! S!�� y _��. C 4>�•i �:�. -y. tx .�;3 ,.L,`�f J�J r �,f��X'r"H�tu'�'. r � �u, f _ `.,� .0 y ��'�.�"1 Yli�r�7,;.'i `t'�f�'�`✓ t�'-}�'`'a 7 K _ r t> r x' i J " �4�.<lx ��-'iy.�.,�r".� 7-',..-f� �ti�tk� l J ., 1 S yl H � �4) � - r 4... I�/j y'r`•v f ! � L r < •r �Y't',e�_F i� � l't /.L' ^y!�•s.��J3~��.+'�.�c..r.E�f � ..— ;$' , I , l > I- K i � i (`�J t- f Fes- '° - f w�'a,• '�`'' � � � ¢5'`i_ i 7. +a. �1�• YT'. .�,'t- � �� r a`..µ-,c_'�.r+ ®R% � ``� •, C'i� `+ /`RK�r`• .� '�"y'3�,? f �` � ��K, K r �f ,•� ....f„� � Sir"",��-'b� �.�3 �r w � ,1��t�`r•,��g"�4a�-• s �•} r r t�F1 �°� r"' �'�.�..Q v!f s r� ��` ��' { �i,�! a �+'4' �- „�'1�^ � ' RZ r. ' ( t,iv .t K' � nT�"� � � r v r "f�,,, 4 `� H •f`„S,P�/ '+ :t .�,E' �`f\ ;.`04w55 �-' S a .� � ..'r4 �-t �`'�> ,( tack'�s ! .+t�� '`•c�`L�3^��''-^ t y -. S, �c�tMM -2ox ; ""�y�.ia:.Nj.° `rl. w� "lj .• ra ,.. Y i } '.\tt "'v Svc'$ �t nti ,vimr s �.`r S•i�/ ,'�a ` � `A` .� ` "c �-'r`r f r�S tJ�� Vis• +1< ��s�� 'i.t Y jI i`s l"r•��,y+� k t x .a �{{J� � -v t) J3 s �fv tr � � 4 �� t\ �� .�sS �� s-�✓� r-..f j, e t ,x < r13 F;d _ a: T\ � --rt a. t 's.$ir -s'- � *e i o-� �- e `a� �!' tj��t �•� - y r+� �{ iy " n fi� .V,^}+:[7F F .�` }-<�st� -•IT �' €��.t-u `T 3� k k r yh l :f J I £ ' -+.c' r'..-c-""�•J-c'�-�'.'`2•a��?_ ,z.....r r f }c -�t`t � rr•r.:... � ti s �B t f X LI F � { 1 x r u t r w d r g � �� s '�i r'-- 1.�, t�� r[ a•g �^ spa � 1� �� r y i :�;_,.::..n - - ..b„f7k.; 5 _\#<k.. ,t�,,.::..: KY.'�R•.r..:Y=.�]4..��:�-' 1!L�+.�r.. ' f t . Y,. 't 1. 1 W, too S 3 1 jt You 4nol 0-1 -01 wh Ftzj tj anon i .. - .. L J S t i J r 1 1 ' ✓ z ` z ; h -r ✓ k°� 3 a Y wgyMY U-M S I I•T 31+r ,+. y� ...+: .+�„Eas'tF.t'ru�3,,�-6�'-'�- f -c.r3 i; y -jPI ZZ f ,.... i ATTACHMENT E GENERAL TERMS AND CONDITIONS GRANTS AND COOPERATIVE AGREEMENTS 2011 NATURAL.RESOURCES CONSERVATION SERVICE U.S.- DEPARTMENT OF AGRICULTURE' GENERAL TERMS AND CONDITIONS GRANTS AND COOPERATIVE AGREEMENTS I. APPLICABLE REGULATIONS a. The recipient,and recipients of any subawards under this awarid,agree to comply with the following regulations,as applicable. (The full text of Code of Federal Regulations references may be found at hM.//www aceess ggo goy/nara/ofr/r +-tah a-seamh html#nagel.) (l) 7 CFR Section 30.15.205,"General Provisions for Grants and-Cooperative Agreements with Institutions of Higher Education,Other Nonprofit Organizations, and Hospitals" (2) 7 CFR Part-3416,"Uniform Administrative Requirements for-Giants and Cooperative Agreements to State and Local Governments" (3) ,7 CFR Part 3017,'"Governmentwide•Debarment and Suspension(Nonprocurementy' (4)-7 CPR Part 3018,"New Restrictions on Lobbying" (5) 7 CFR-Part 3019,"Uniform Administrative Requirements for Grant and Other Agreements with Institutions of Higher Education,Hospitals,and;Noinprofit Organizations" (6) 7 CFR Part 3021,"GovernmentwideRequirements for Drug-Free Workplace (Financial Assistance)" (7) 7 CFR Part 3052,"Audits of States,Local-Govermnen%and Nonprofit Organizations" • (8) 2 CFR Part 215,"Uniform Admi nistrative-l1equirements fot Grants and Agreements with Institutions of Higher Education,Hospitals,and Other Nonprofit Organizations" (9) Office of Management and Budget(OMB)Circular No.A-102,"Uniform Administrative Requirements for Grants and Cooperative Agreements with State and Local Governments"(including Indian Tribal governments) (10)2 CFR Part 25,"Universal Identifier and Central Contractor ftistration" (l 1)2 CFRPart170"Reporting Subaward and Executive Compensation Information" b. The recipient,and recipients of any subawards under this award;assures and certifiesihat it -will comply with the following regulations,as applicable. (The full text of Code of Federal Regulations references maybe foundat httpJ/wwv�.accesc.gpogayhraYa/cfr/cfr-table- ' •search.htm l#uaael.) (1) 7 CFR Part 3017,"Governmentwide Debarment and Suspension(Nonprocurement)" (2) 7 CFR Part 3018,"New Restrictions on Lobbying" (3). 7 CFit Part 3021,"Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)" (4) 7 CFR Part 3052,"Audits of States,Local Governments,and Nonprofit Organizations" (5) Public Law 109-282,"Federal Funding Accountability and Transparency Act of 2006" (6) 2 CFR Section 175,"Award Tern for Trafficking in Persons" i i� a Allowable project costs will be determined in accordance with the authorizing statute,the } purpose of the award,and to the extent applicable to the type of organizations receiving the award,regardless of tier.The following portions of the Code ofFederal Regulations are hereby incorporated by reference(the full text of Code of Federal Regulations references may be found at hgg://www.access. g.gov/nate/Cfr/cfr-table-search.html#,,,,paseD: i (1) 2.CFR Part 220;"Cost Princlples'for lnstitutions of Higher Education" (2) 2 CFR Part 225,"Cost Principles for State and Local Governments(Including Certain Indian Tribal Governments)" (3) 2 CFR Part 230,"Cost Principles for Nonprofit Organizations" (4) 48 CFR Part 31,"Contract Cost Principles and Procedures" _�-- ---•-- T�—tJNAZ�'WtfBLE COSTS— ----- —•--- _----------- .- ----- -- - - ---- (� The following costs*are not,allowed:- a. llowed:a. Costs above the amount authorized for the project b. 'Costs incurred after the expiration of the award including any 130-cost extensions of time '.} a Costs that lie outside the scope of the approve4project and any amendments thereto • d. Compensation for injuries to persons or damage to property Arising from project activities This list is not exhaustive. Questions about the allowability of particular items of costs should be directed to the MRCS administrative contact identified in theaward. i{ M. CONMENTIALITY a. Activities performed under this award may involve access to confidential and potentially sensitive information about governmental and landowner issues. The tern"confidential Juforination"means proprietary information or,data of a personal nature about an individual, y or information or data submitted by or pertaining to an organization. This information must not be disclosed without the.prior written consent of NRCS. b. The recipient's personnel will follow the rules and procedures ofdisclosure set forth in the Privacy Act of 1974,5 U.S.C.Section.552a,_and implementing regulations and policies with respect to systems of records determined to be subject to the Privacy Act. The recipient's personnel must also comply with prMicy.ofpersbnal informatio4 relating to natural resources copserVation programs in accordance with section,1244 of Title II of the Farm Security and Fbral-Investment Act of 2002(Public Law 107-171 , '. IV. PRIOR APPROVAL REQUI M.WNU The following are-the most common situations requiring prior approval. ffowever,the recipient is also bound by any other prior approval requirements of the applicable administrative provisions and Federal cost principles. a. Purpose or Deliverables.—When it is necessary for the recipient to modify the purpose or deliverables,the recipient must submit a written request and justification-for the change along with the revised purpose or deliverables of the award to the NRCS administrative contact. The'request sfiould contain the following: 1. Grant or agreement number 2. Narrative explaining the requested modification to the project purpose or deliverables 3. A description of the revised purpose or deliverables 4. Signatures of the authorized representative,project director,or boih b. Subcontractual Arrangement.The recipient must submit a justification for the proposed subcontractual arrangements,a statement of work to beperformed,and a detailed budget for a the subcontract to the MRCS administrative contact. Subcontractual arrangements disclosed in the application do not require additional postaward approval. c. Absence or Change in Project Leadership.—When a project director or the person responsible for the direction or management of the project- 1. roject1. Relinquishes active.direction of the project for more than 3 consecutive months or, has a 25 percent or more reduction in time devoted to the project,the grantee must notify the MRCS administrative contact in writing,identifying who will be in charge during the project director's absence. The notification must include the qualifications and the signature of the replacement,signifying his or her willingness to serve on the project. 2. Severs his or her affiliation with the grantee,the grantee's options include— i. Replacing the project director. The granteemust request written approval of the replacement from the NRCS,administrative contact and must include the qualifications and the signature ofthe replacement signifying his or her willingness to serve on the project. I Subcontracting to the former project director's new organization. The grantee must-request approval from the administrative contact to replace the project manager and retain the award,and to subcontract to the former project directo'r's new organization certain portions of the project to be completed by the former project director. .111. Relinquishing the award. The grantee must submit to the NRCS administrative contact a signed letter by the grantee and the,project director that indicates that the grantee is relinquishing the award. The letter must include the date.the project director is leaving and a summary,of progress to date. A final Standard Form(SF).425 reflecting the total amount of funds __. spent by.the recipient must be,attached to the letter. 3. Transfers-the award to his or her new organization,the authorized organization's representative at the new organization must submitahe following to the MRCS administrative contact as soon as the transfer date is firm and the amount of funds to be transferred is known: i. The•forms and certifications included in the application package U., A project summary and work statement covering the work to be completed, 'under the project(deliverables and objectives mustbe the same as those outlined.in the approved proposal) Hi. An updated qualifications statement for the project director showing his or her new organizational affiliation iv; Any cost-sharing requirements under the original award transfer to the new institution;therefore,cost-sharing information must be included in the proposal from the new organization Note: The ttansfer`ofan award from one organization to another can take up to 90 days to accomplish,which may result in a delay in the project director resuming the project at the new,organization. d. Budget Revisions.--Budget revisions will be in accordance with 7 CFR Section 3015.115. e. No-Cost Extensions of Time.—When a no-cost extension of time is required,the recipient must submit a written request to the NRCS administrative contact no later than 30 days before the expiration date of the award. The request must contain the following: • The length of additional time required to complete the project and a justification for the extension • A summary of progress to date a • ■ An estimate of funds expected to remain unobligated on the scheduled expiration date • A projected timetable to complete the portions of the project forwhich the extension is Mug requested • Signature of the grantee and the project director ■ A status of cost sharing to date(if applicable) Note:An extension will not exceed 12 months. Only in exceptional cases will more than one extension be granted. Requests for no-cost extensions received after the expiration of the award will not be granted. V. PAYMENTS a. Payment by MRCS to the entity will be made monthly or quarterly(whichever is mutually agreed upon by both parties)on a reimbursable or advanced basis upon completion of work outlined herein. Payment will be executed upon the submission-of a properly executed form SF 270. The SF 270 must cite the agreement number,remittance address,and billing period. The SA-270 must be sent to the NRCS program contact at the address identified in block 7 of the Notice of GraM/Agreement Award.. b.. Unless otherwise specified in the award,.the recipient must receive payments through electronic finds transfers, cf. Recipients requesting advances should request payments in amounts necessary to meet their current needs pursuant to procedures contained in the Federal administrative provisions and ii 31.-CFKPart•205. 3 d. The method of payment between the'recipient and its contractors will be in accordance with the policies•and procedures established by the recipient except that the contractors may not !{ use the USDA Office•of Financial'Management/National Finance Center method to request .i payments. If the grantee makes advance payments to contractarg,the grantee must ensure that -j the timing of such payments is designed to minimize elapsed time between the advance payment and the disbursement of funds. Paymentrequests from the grantee's contractors will _I not be sent to NRCS for review or approval. e. Accounting records for all costs incurred under this award must be supported by source documentation. Such documentation includes,but is not limited to,-canceled checks,paid Pills,payroll records,and subcontract awaid docunients. Labor cost charges to this award must be based upon salaries actually earned'and the time actually worked on this award. All project costs must be incurred within the approved projectperiod of this award,including any approved no-cost extension of time. Costs that cannot be supported by source documentation Pr that arc incurred outside of the approved project period•and budget may be disallowed and may result in award funds•being returned to the Federal Government by the recipient. VI. FINANCIAL REPORTING a. Recipients must submit a Federal Financial Rcport(FFR),SF 425 and 425A;in accordance with the following schedule(recipients may download the applicable form at http://www.fonns.gov): - _ Ouarte&Schedule Report Due-Date October 1 to December 31 January 31 January 1 to March 31 April 30" April 1 to June 30 July 30 July Ito September 30 October 30 -a . Reports must be submitted on an accrual accounting basis. Failure',to submit reports in accordance with the above schedule may result in suspension or termination of award. b. A final Report must be submitted no later than 90 days after the completion of the award. For final FFRs,reporting end date must be the end date of the project or agreement period. The reports should be submitted to the NRCS administrative contact identified in award notifications. VII. PERFORMANCE MONITORING AND REPORTING a. The recipient is responsible for monitoring day-today performance and for reporting to NRCS. If the project involves subcontraetual arrangements,the recipient is also responsible for monitoring the performance of project activities under those arrangements to ensure that approved goals and schedules are met. b. Every 6 months the.recipient must submit a written progress report. Each report must cover— 1. A comparison of actual accomplishments with the goals and objectives established for the reporting'perioil and,where project output can be quantified,a computation of the costs per utut of output. 2. The reasons-why goals and objectives were not met,if appropriate. 3. Additional pertinent information including,where appropriate,analysis and explanation of cost overnms or high unit cost. c. -The recipient must submit a final performance report within 90 days after completion of project. VIII. SPECIAL PROVISIONS a. The recipient assures and certifies that it will comply with the minimum-wage and maximum- hour provisions of the Federal Fair Labor Standards Act. b. Employees ofNRCS will participate in efforts under this agreement solely as representatives of the United States.To this end,they may not participate as directors,,offrcers,employees,or otherwise serve or hold themselves out as representatives of the recipient. They also may not assist the recipient with efforts to lobby Congress or to raise money through fumdWsing efforts. Further,NRCS employees must report to their immediate supervisor any negotiations -with-thosecipient concerning future employment and must'refrain from participation in efforts regarding such parties until approved by the agency. G Employees of the recipient will not be considered Federal employees or agents,of the United States for any purposes under this agreement. _ IX. 'PATENTS,INVENTIONS,COPYRIGHTS,ANA.ACKNOWLEDGMENT OF SUPPORT AND DISCLAIMER a, Allocation"of rights of patents,inventions,and copyrights must be In accordance with 7 CFR Section 3019.36. This regulation provides that small'businesses normally may retain the principal worldwide patent rights to any invention developed with USDA support. b. In-accordance with 37 CFR Section 401.14,each subject invention must be disclosed to the Federal agency within 2 months after the inventor discloses it in writing fo contractor J personnel responsible for patent matters. Invention disclosure statements pursuant to 37 CFR j - Section 401.14(c)must be made in writing to: Acquistions Divisidn Grants and Agreements Team 1400 Independence Avenue,SW. Room 5221 South Building Washington,DC 20250 c. USDA receives a royalty-free license for Federal Government use, reserves the right to require the patentee to license others in certain circumstances, and requires that anyone exclusively—licensed—to—sdl—the—invention=in—the—United States—must—manufacture--it---- I domestically. I d. The following acknowledgment of NRCS support must appear in the publication of any• material,whether copyrighted or,not, and any products in electronic formats (World Wide Web pages,computer programs,etc.)that is substantially based upon or developed under this award: - • "This material is based upon work supported by the Natural Resources Conservation Service, U.S—Department of Agriculture, under nuinber [recipient should enter the applicable award number here]." In addition,all publications and other materials,except scientific articles or papers published in scientific journals,must include the following statement: • "Any opinions,findings,conclusions,or recommendations expressed in this publication W those of the authors)and do hot necessarily+reflect the views of the U.S.Department of Agriculture." E - - The recipient is responsible for ensuring that an acknowledgment of NRCS is made during news media interviews, including popular media such as radio, television, and news magazines,that discuss in a substantial way work funded by this award. X- COST-SHARING REQUIREMENTS it. .If the•award has specific co sharing requirements,the cost-sharing participation in other projects:may not be counted toward meeting the specific cost-share-requiremerit of this award, .and must come from non-Federal sources unless otherwise stated in the applicable program announcement. ' b. Should the recipient.become aware that it may be unable to provide the cost-sharing amount identified in this award,it mast 1. Immediately notify the NRCS administrative contact of the situation. 2. Specify the steps it plans to take to secure rdplacement cost sharing. 3. Indicate the plans to either continue or phase out the project in the absence of cost sharing. c. If NRCS agrees to the organization's proposed plans,the recipient will-be-notified accordingly. if the organization's plans are not acceptable to NRCS,the award may be subject to termination. NRCS modifications to proposed cost sharing revisions,are made on a case-by-case basis. d. Failure by the recipient to notify NRCS in accordance with paragraph(b)above may result in' the disallowance of some or all the costs charged to the award,the subsequent recovery by NRC§of some of the NRCS funds provided under the award,and possible termination of the award,and may constitute a violation of the terms and conditions of the award so serious as to provide grounds for subsequent suspension or debarment. e. The recipient must maintain records of all project costs that are claimed by the recipient as cost sharing as well records of costs to be paid by NRCS. If the recipient's cost participation includes in-kind contributions,the basis for determining the valuation for volunteer services and donated property must be documented. XI. PROGRAM INCOME Income derived from patents,inventions,or copyrights will be disposed of in accordance with the recipient's own policies. General program income earned under this award during the period of NRCS support must be added to total project funds and used to further the purpose and scope of this award or the legislation under which this award is made. XII. NONEXPENDABLE EQUIPMENT Recipients purchasing equipment or products with funds provided under this award are encouraged to use such funds to purchase only American-made equipment and products. Title to nonexpendable equipment purchased with award funds will vest in the recipient upon completion of the award project and acceptance by NRCS of required final reports. When equipment is no longer needed by the recipient and the per-unit fair market value is less than$5,000,the recipient may retain,sell,or dispose of the equipment with no further obligation to MRCS. However,if the per-unit fair market value is$5,000 or more,the recipient must submit ft-written request to the NRCS administrative contact for disposition instructions. XIII. LIMIT OF FEDERAL LIABILITY The maximum financial obligation of NRCS to the recipient is the amount of funds indicated in the award as obligated by MRCS. However,in the event that an erroneous amount is stated on the approved budget, or any supporting document relating to the award,NRCS will have the unilateral right to make the correction and to make an appropriate adjustment in the MRCS share of the award to align with the Federal amount authorized. XIV. MODIFICATIONS AND TERMINATIONS NRCS may amend or modify the award through an exchange of correspondence between authorized officials of the recipient and NRCS. The award is subject to termination if MRCS determines that the recipient has failed to comply with the-terms and conditions of the award. In the event that the award is terminated,the financial obligations of the parties will be those set forth in 7 CFR Part 3015,Subpart N. XV. AWARD CLOSEOUT Award closeout is the process by which NRCS determines that all required project activities have been, performed satisfactorily and all necessary administrative actions have been completed. ATTACHMENT C GENERIC OPERATIONS AND MAINTENANCE PLAN OPERATION AND MAINTENANCE PLAN EXAMPLE The sponsor(s) are responsible for maintaining all measures installed under the Emergency Watershed Protection (EWP) Program. Most measures such as rock flumes and checks, earth fill, and vegetation require only minimal maintenance. The maintenance requirements are obvious and no special documentation of the maintenance is needed. Measures that are considered permanent structures and those that require regular maintenance to insure that proper functioning must have an Operation and Maintenance (O&M) Plan. Examples of structures requiring an O&M Plan are riprap streambank protection; pipe drop structures;gabion drop structures or retaining wails; important concrete structures; other measures that may be critical for public safety. 'An O&M Plan may be prepared for a single site or a group of sites. The plan should state who is responsible for operation and maintenance activities (generally the sponsor). It should state the specific activities that must be performed to keep the measures in good condition and functioning properly. Usually an estimate of the annual cost of O&M activities is included. The O&M Plan should outline the timing and frequency of required inspections. The O&M Plan should be prepared by the engineer who designs the EWP measure. An.example O&M Plan follows and should be included as Attachment C to the Project Agreement. ATTACHMENT C OPERATION AND MAINTENANCE PLAN EMERGENCY WATERSHED PROTECTION SITE: I. Operation The Sponsor(s) is responsible for the operation and maintenance (O&M)for this.project. Operation includes the administration, management, and performing of non-maintenance actions needed to keep a completed practice safe and functioning as planned for-the life span of the practice. H.' 'Maintenance The Sponsor(s) shall be responsible for promptly performing or have performed maintenance determined by either the Sponsor(s) or the NRCS. Maintenance includes performance of work and providing the materials to prevent the deterioration of practices and/or-repair damage to,-or replacement of, the-practice if one or..more of its components fail: This includes both routine and 'recurring needs in a timely manner. Damages to completed practices caused by normal deterioratiori, drought, flooding caused by rainfall in excess of design rainfall, or vandalism are considered to be maintenance. Maintenance may include replacing displaced rocks;'re-chinking, removing gravel'arid debris,filling undercut areas, repair of eroded banks, and vegetative treatment. It is anticipated that the following items of maintenance, repair,-or replacement will be needed during the effective life of the practice. 1. Vegetation a. Reshape as necessary and either reseed or resod, and fertilize areas of poor stand, including those areas damaged by erosion, freezing, or drought. b. Fertilize vegetation as required to maintain a vigorous stand. c. Mow grass at regular intervals to maintain optimum cover., i f .i d. Spray or cut undesirable brush. Maintain desired brush. Cuttings i for propagation on other sites are allowed with NRCS prior I approval. : } 2. Structures a a. Remove and properly dispose of logs, trees and debris impacting i — -- flows — - ---- - ------ - - - -- 'I b. Maintain diversions. Reshape areas to eliminate depressions and =i rills caused by concentrated runoff. c. Repair structures; streambanks; reshape and repair rock basins t. and rock flumes as needed,-to keep functional. Add ruck as needed. 3. The estimated average annual cost of providing the.necessary maintenance for this site is $ Funds to finance this cost will be provided by the Sponsor. Ill. Inspection, As part of the Operation and Maintenance duties, the Sponsor is responsible for making the necessary inspections. Jf a problem is encountered,the Sponsor is encouraged to contact the Natural Resource Conservation Service (NRCS)- -representative to assist in developing a solution: The Sponsor shall notmake any changes to, or within proximity of,the practice that will alter the original designed function without prior approval of NRCS. The Sponsor.shall-hotify i NRCS of any work'to be done in a timely'manner. Inspections shall be performed on an annual basis before May 15 and also after majorstorm events. Inspection shall include but'is not limited to: . i 1. Condition of the rock: a. check all rocks for accelerated weathering and displacement including-chinking- _ _----- - -- - 2. Condition of the channel bed and banks: a. streambed scour at the toe rock or erosion of adjacent banks b. failure of adjacent structures c. gravel or debris build-up in the vicinity of the practice . 1 d. soil settlement or ground cracks in the vicinity of the practice e. presence of burrows due to animals f. damage due to vandalism, vehicles, livestock, etc. 3. Condition of the vegetation: a. health/vigor of vegetation used as/in conjunction with the practice b. bio-engineering/planting techniques during the establishment period A written report will be made of each inspection. If it is determined during the inspection,that the items above could affect the functioning of the site, corrective action and repairs will be made immediately in order to reduce the possibility of further damage and/or failure. A follow-up report will be provided when all .corrective action has been accomplished. IV. Land Rights Project Sponsors must have or obtain land rights adequate for carrying out their O&M responsibilities. �orst ATTACHMENT D 7 GFR 624-EMERGENCY WATERSHED PROTECTION PROGRAM 16921 Rules and Regulations Federal Register Vol. 70. No. 63 Monday, April 4, 2005 This section of the FEDERAL REGISTER administration of the EWP program by 10 years,and discontinuing the practice contains regulatory documents having general the United States Department of ofrovidin EWP funds on Federal applicability and legal effect,most of which' Agriculture Forest Service,contact lands.However,some of this expected are keyed to and codified in the Code of Meredith Webster,(202)205-0804,fax reduction rang be offset by increased Federal Regulations,which is published under 50 titles pursuant to 44 U.S.C.9510. (202)205-1096,mmwebsterft.fed.us, cost-share for limited resource counties USDA Forest Service,20114th Street and the use of EWP in the repair of The Code of Federal Regulations is sold b.% SW.,3 South Yates Building,Mail Stop conservation practices on agricultural the Superintehdent of Documents.Prices of 1121,Washington,DC 20024 lands.A copy of this cost-benefit new books are fisted in the first FEDERAL SUPPLEMENTARY INFORMATION: analysis is available upon request from REGISTER issue of each week. the address listed above. Background j DEPARTMENT OF AGRICULTURE cooperates Secretary of Agriculture Regulatory Flexibility Act cooperates with other Federal.State, - The-Regulatory Flexibility Act is not Natural Resources Conservation and local agencies in the recovery from applicable to this rule because neither Service natural disasters such as hurricanes, the Secretary th A culecaas or NRCS tornadoes,fires,drought,and floods are required by 5 US.Cltur , an other 7 CFR Part 624 through implementation of the EWP y Program(authorized by Section 216 of law to publish a notice of proposed Emergency Watershed Protection the Flood Control Act o€1950,Public-- rulemaking for the subject matter of this Program Law 81-516,33 U.S.C.70lb-1;and fie. AGENCY.•Natural Resources Section 403 of the Agricultural Credit Environmental Evaluation Conservation Service,USDA. Act of 1978,Public Law 95-334,as amended by Section 382,of the Federal A Programmatic Environmental. ACTON:Final rale. Agriculture Improvement and Reform Impact Statement(PETS)and Record of SUMMARY:The United States Department Act of 1996,Public Law 104-427,16 Decision(ROD)were prepared as a part of Agriculture(USDA)Natural U.S.C.2203).EWl?,through local • of this rulemaking.NRCS considered Resources Conservation Service(MRCS) 'sponsors,provides emergency measures- both the comments received on the Than is issuing a final rule-for•the Emergency for run-off retardation and erosion PETS and the proposed rule in Watershed Protection(EWP)Program to central to areas wherea sudden formulation of the final regulation.: improve the effectiveness of its response 'mPr PmrtY°The Secretary.t atens life be obtained m the Financial nd OD may to natural disasters.This final rule Agriculture has delegated the Assistance Pro establishes the process by which NRCS �. eg grams Division,Natural Will administer the EWP Program,, admuustration of EWP to the Chief of 'Resources Conservation Service,USDA, responds to comments on the proposed NRCS on state,tribal,and private lands, P.O.Box 2890,Washington,DC 20013- rule received from the public during the and Chief of USDA Forest Service(FS) 2890.The final PSIS and ROD 'maybe, 60-day comment period,and on National Forest System lands, accessed via the Internet.Users can incorporates modifications and including any other lands that are access the MRCS homepage at httpJ/ clarifications to improve administered under a formal agreement w1iW nres usda.gov/pmgrams/ewp/, implementation of the program, with-the FS.The FS administersfhe- Select the PES link listed on the EWP DATES:Effective Date;May 4,2005. EW Program in accordance with Forest program page. ADDRESSES.This final rule may,be Service Manuals 1950 and 2540,and the q Forest Service Handbook 1909.15.This Paperwo*Reduction Act accessed via the Internet.Users can• rule only provides direction to the access the Natural Resources This final rule well not alter the Conservation Service(MRCS)homepage PPro�m administering the EWP collection of information previously at http://www.nrce.usda gov/progra-ms/ approved by the Office of Management W/.Select the EWP rule link,listed on Executive Order 12866 and Budget and assigned number 0578- EWP program page• The Office of Management and Budget 0030. FOR FURTHER Mr-oRMATIoti CONTACT: (OMB)has determined that this final Government Paperwork Elimination Victor Cole,(202)690-0793,fax(202) rule is a"significant action"for the Act _ 720-4265,-vjclor,cole®usda.gov,_-.- -Purposes of ExecutivaOrder.12866, Financial Assistance Programs Division, Pursuant to Section 6(a)(8)of Executive NRCS is committed to compliance NaturalResources Conservation Service, Order 12866,NRCS has conducted an- with the GovernhmtPaperwork P.O.Box 2890,Washington,,DC 20013- economic analysis of the potential Elimination Act,which requires 2890 or for information regarding EWP impacts associated with this final rule Government agencies,in general,to floodplain easements,contact Leslie as compared to the existing program.;- provide the public the option of Deavers(202)720-1062,fax(202)720- The economic analysis concluded that submitting information br transacting 6697,leslfe.deavers®usdagov, changes to the program implemented by business electronically to the maximum Easement Programs Division,Natural this rule may save up to$1.4 million extent possible.To better commodate Resources Conservation Service,P.O. each year.These changes include: public access,NRCS is proposing to Box 2890,Washington,DC 20013-z896. Setting EWP priorities,pre-disaster develop an online application and For information regarding readiness,limiting repairs to 2 times in information system for public use. s 16922 Federal Register/Vol. 70, No. 63/Monday. April 4, 2005/Rules and Regulations Executive Order 13132 (b)This regulation would not cause a practices,limit repeated site repairs; J This final rule has been reviewed In malar increase in costs or prices for allow additional easement purchases, accordance with requirements of consumers,individual industries, address environmental justice issues, Federal.State,or local government and limit treatments on federal lands.In Executive Order 13132,Federalism, agencies,or geographic regions, this rulemaking.NRCS has incorporated MRCS has determined that the rule (c)This regulation wound not have a changes in program administration and conforms to the Federalism principles significant adverse effect on in project execution dealing with set forth in the Executive Order;would competition,employment,investment, traditional watershed impairments.This not impose any compliance cost on the productivity,innovation,or the ability final rule expands the program b States;and would not have substantial of U.S.based enterprises to compete providing for removal of sediment in the direct effects on the States.on the with foreign-based enterprises. floodplain and repair of damaged relationship between the Federal structural conservation practices to the Government and the States,or on the Unfunded Mandates Reform Act of list of watershed impairments for which distribution of power and 1995 EWP Program funds may be used. responsibilities on the various levels of pursuant to Title II of the Unfunded Additionallyp,the regulatory changes government. _ _ _ Man_dates Reform ACt of 1995,Public include:Allowfng.for up_to-90-percenf-__— _— ecutive Order 12998 Law 104-•4,NRCS assessed the effects of cost-share for limited resource areas, i Bx this final rule on State,local,and tribal limit repair to twice in a ten year period; This final rale has been reviewed in governments,and thepublic.This eliminate the single beneficiary accordance with Executive Order 12998. action does not compel the expenditure requirement;purchase of easements on The provisions of this rule are not . of$100 million or more by any State, non-agricultural lands;establish one retroactive.Furthermore,the provisions local,or tribal government,or the easement category;and funding projects of this final rule pre-empt State and private sector,therefore,a statement on Federal lands only when such focal laws to the extent that such laws under Section 202 of the Unfunded funding is not an inappropriate funding are inconsistent with-this final rule. Mandates Reform Act of 1995 Ji not augmentation of the land management Before as action may be brought in a required. agency appropriations. Federal court of competent jurisdiction, Program delivery improvements the administrative appeal rights contained in this final rule are designed afforded personsat 7 CFR parts 614 and The EWP Program helps remove to enable NRCS field and state office ii must be exhausted.For EWP throats to lifo and propeWP rty that remain personnel to provide Eassis-lance recovery measures,an individual in the.nation's waters, eds in the more effectively and efficiently.MRCS, s landowner is not.an EWP participant aftermath of natural disasters including, believes that these improvements-will - nor is the legal substantive•status of but is not limited to,floods,fires, more fully,equitably,and consistently land affected by an NRCS-decision windstorms,ice storms,hurricanes, meet the needs of people requiring regarding the eligibility of a measure for typhoons,tornadoes,earthquakes, emergency assistance.Program EWP assistance.Thereford,an volcanic actions,slides,.and droughiw improvements are designed to address individual landowner is not entitled to The EWP Program is administered.by- environmental,economic,and social = - appeal an EWP recovery measure MRCS,on state,tribal,and private lands concerns and values. determination under 7 CFR parts 614 by providing technical and financial The changes adopted in this final rola •� and 11. assistance to local sponsoring were identified,discussed,and refined Executive Order 13175 authorities to preserve life and property - in an ongoing comprehensive program. tbxeatened by disaster for runoff . review that NRCS initiated and then NRCS has taken measures to ensure retardation and soil-erosion prevention. . issued in the proposed rule.The procou tribal officials are aware of the EUT Funding is typically provided through included extensive opportunities for Program and.are provided opportunities Congressional emergency supplemental public participation and identified to receive assistance in compliance with appropriations.Threats that the EWP ' substantive ways to improve the the Executive Order.NRCS established program addresses are termed 'environmental,economic,social,and field offices within some reservations watershed impairments.These include, technical soundness of program and tribal liaison staff to promote but are-not limited to,debris-clogged activities. outreach and coordination with tribal stream channels,undermined and In response to the proposed y officials.The result of this effort has unstable streambanks,jeopardized water rulemaking,seven separate responses I been increased participation iii the EWP control structures and public from the public containing about 25 Program by tribes.Additionally,NRCS -infrastructure,wind-borne debris specific comments were received during has included a waiver provision in this removal,and damaged upland sites the 60-day comment period:1 response* regulation which complies with the stripped of protective vegetation by fire from an individual,2 from conservation 1 flexibility requirement of the Executive or drought.If these watershed districts and related groups,and 4 from Order. impairments are not addressed,they State agencies. Small Business Regulatory Enforcement would posy a-serious•threat-of injr i; -------Add:tionai responses were received -- - i lots of life,or devastating property from a Federal agency and NRCS Fairness Act of 2996(SBREFA) damage should a subsequent event employees;their comments are not This regulation is not a major rule :. occur. included in the following analysis of under 5 U.S.C.801 et.seq.the Small On November 19,2003(Federal public comments.These responses were.. j Business Regulatory Enforcement Register Vol.68,No.223 pages 65202–. treated as inter and intra-agency "( Fairness Act: 65210)NRCS initiated rulemaking by comments and considered in the (a)This regulation would not produce publishing a proposed*rule with request drafting of the final rule along with the an annual economic effect of 5100 for comments to modify the existing public comments where appropriate. million.The changes to the program are •regulation at 7 CFR part 624 to make • All comments received are available expected to yield cost savings of up to programmatic changes that allow the _for review in Room 6019,South $1.4 million per year. repair of enduring,conservation Agriculture Building,14th and s S 3 Federal Register/Vol. 70, No. 63/Monday, April 4, 2005/Rules and Regulations 16923 Independence-Ave.,SW.,Washington, although NRCS has not applied the For example,if a home was protected DC,during regular business hours higher cost-sharing rate,originally set from destruction twice using EWP (8 am.to 5 p.m.)Monday through for exigencies,for the past 11 years. 'assistance for two separate events, Friday. Instead,NRCS has applied a single cost regardless of the structural measure Analysis of Public Comment share rate of 75 percent to exigent used'to protect the home or the location situations.However,MRCS recognizes along the waterway of the protection Overall,the comments received were there may be unique situations that efforts,EWP funds would not be favorable and supported the proposed require a waiver from this cost-sharing available for a third protection effort of changes to the EWP Program.Some rate.The agency added Section 624.11 .the home within the,10-year period for commentors offered suggestions for Waivers which allows the NRCS Deputy the same cause.For repairs of dikes, improving or clarifying specific sections Chief for Programs to waive any levees,berms,and similar structures, of the proposed nile which resulted in provision of these regulations to the because these structures can run the agency making changes to the extent allowed by law.An example may contiguously for miles,a speck proposed rule as identified in the include allowing up to 100 percent cost- location on a structure is considered one section-by-section discussion of sharing for a limited resource area. EWP site to determine whether future comments' Based upon past experience.NRCS impacts to this site on the structure are The comments focused p s wide reConsidered the 5-day exigency time eligible for EWP funds.Thus,repairs variety of issues a the proposed rule. frame and has lengthened the time can be made repetitive) so long as the Editorial and other language � y g , clarification changes were suggested, frame to accomplish exigency measures same location is not repetitively these comments are not included in the from 5 days to 20 days.This additional repaired more than twice within 10 following analysis but all were time will aid sponsors in their effort to Years. tion 624.6(b)(2)(�)•Two. considered and many of the minor secure their cost-share.Additionally. Seccomments were received that . technical changes were included in the many EWP exigency situations involve, supported permitting or other legal requirements the language change to clarify that final rule.For the sections not listed resulting in additional time.The NRCS can only provide EWP assistance this preamble,the agency has adapted additional five days should provide on Federal lands in situations where the language described is the proposed time for the sponsors to secure safeguards are followed to avoid rule with the exception of non- recess substantive editorial and other 1 e azY emergency permits and for inappropriate augmentation of clarifications. NRCS and sponsors to comply with any appropriations,therefore,NRCS is applicable Federal law or regulation. adopting the proposal without changes. Several comments were related to Section 624.6jb)(2)ji).Two comments One comment recommended that funding and suggested that the EWP exigency-situations should be funded on. Program should be funded as a line item were received that express support for Federal lands. In NRCS'fiscal year appropriations limiting of repair of the same site to NRCS and the FS have been delegated since there is sometimes a significant only twice within ten year period in the authority to administer the EWP delay from the date of the natural order to avoid repetitive Federal program.NRCS administers the program disaster until funding is provided, funding,which could in turn perpetuate on state,tribal,and private lands while Funding for the EWP Program is activities that are not best suited for the the FS administers the program on typically provided through emergency meas prone to impacts from natural National Forest System lands,including supplemental appropriations and it eters.Two comments also expressed lands under an official management would require Congressional action to concern regarding whether the agreement with the FS.NRCS is the lead include EWP funding as a line item. limitation was applicable to the removal •USDA agency,responsible for of debris within the same site. , developing HWP re Section-By-Section Discussion of Consequently,NRCS has modified the p g regulations and policy Comments Received on the Proposed.. anguag for both agencies and through a 1998 .Rule Provisions p language to reflect that the limitation Memorandum of Understanding with refers to structural measures only.NRCS the FS,NRCS also manages the funding Section 624.4(b) -Bxigency.Several recognizes that in most areas of the for both agencies.However,recent comments were received supporting the country there is no practical means to Congressional appropriations have ciadfication'of the term"exigency"and effectively prevent debris from entering designated the funding for NRCS,which elimination of the term"non-exigency". and accumulating in the watershed as a does not authorize NRCS to transfer NRCS acknowledges this support and result of repetitive natural dWsters, funding to the FS for EWP measures on consequently is adopting the proposed Therefore,NRCS does not intend to lands it manages.The existing language language without changes.The changes limit the number of times debris can be of 7 CFR 624.4 language was changed to were proposed because the agency had removed within the`same location due reflect that NRCS will transfer funding previously encountered various cases to a natural or constructed(e.g.,road to the FS only when it is appropriate where the term"exigency"was applied crossing)restriction within a waterway. 'e.g.,when the EWP funding is provided too liberally and implemented for Rather,NRCS would limit repairs under to the Secretary of Agriculture with purposes for which it was not intended. EWP to twice within a 10-year-period- -. -discretionto provide-the funding to--•-•- Interpretations of the terms"exigency" for the same cause(i.e.,flooding)at the both agencies.For Federal lands,it is and"non-exigency"varied widely same site for structural measures.If the Federal land management Within NRCS.NRCS's intent when structural measures have been installed/ department or agency that is responsible establishing these two categories repaired or protected twice with EWP for securing funding to undertake (exigency and non-exigency)in the assistance and less than 1b years has emergency repair activities within lands previous rulemaking(46 FR 65677,Nov. elapsed between the-disaster that under its control. 17,1981)was to allow NRCS to respond,, triggered the first repair and the disaster In response to the commentor that quickly to only those situations that triggering a third repair,the only option recommended that exigency situations needed immediate attention. available under EWP,would be to place should be funded on Federal lands,the In addition,the previous regulation a floodplain easement on the damaged FS is responsible for determining tied cost-sharing to this designation, site. whether exigency situations exist on i 16924 Federal Register/Vol. 70, No. 63/Monday, April 4, 2005/Rules and Regulations i - lands it manages in accordance with productivity,public health and safety, and cause the death of livestock and- regulations ndregulations and policy established by and the environment are often poultry.Debris removal will typically be MRCS.Funding EWP activities on threatened in the aftermath of disasters associated with the removal of debris Federal lands other than those imder FS that occur outside the immediate limits upstream of bridges and culverts,or in management may be an inappropriate of a waterway.Therefore,NRCS has the upland portion of a watershed augmentation of another Federal expanded the EWP Program assistance where debris would readily be moved agency's budget.If'USDA is described in the proposed rule and through runoff and deposited during a Congressionally authorized,funding adopted here in the final rule to include subsequent storm event In a waterway EWP activities on Federal lands may be all recovery measures within which could cause blockages in the appropriate.NRCS has adopted,without watersheds(see Section 624.6(c) waterway.flooding homes and other changes.the proposal defined in section Eligible practices)on all state,tribal, strictures. 624.0)(2)(iv)which limits the use of and private lands otherwise meeting the The practice components adopted to 4 HWP funding on Federal lands except EWP eligibility requirements.NRCS address upland debris deposition may when authorized by Congress or may provide EWP assistance for the include,but are not limited to: adequate safeguards are followed, removal of sediment and other debris • Creating access when needed to Section 62.4;6(b)(3).Several-comments—from agricultural land-(croplands,--—move trucks and heavy equipmentto.a--- were received that supported including orchards,vineyards,and pastures)and debris site eligibility for structural,enduring,and windblown debris.This provision of the , Using chain saws.other power long-life conservation practices. proposed regulation also provides for tools.winches,and other machinery l Additionally,several comments EWP assistance for drought recovery and heavy equipment to gather and expressed concern that the program activities. •process the debris for onsite disposal or should not overlap with Emergency The expansion of eligible recovery removal Conservation Program(ECP) measures is primarily associated with • Disposing of debris in accordance administered by the Farm Service deposits of large quantities of sediments with lobal rules and regulations on-site Agency(FSA). and other debris on floodplain usually by burial,chipping,or burning As stated in the preamble of the occur from major flooding,and • Loading on trucks for romovsl and proposed rule,NRCS does not intend to tornadoes and hurricanes.The disposal offsite in apprmred sites or overlap the EWP program with•ECP sediments are usually coarse and landfills,based upon the composition,of EWP assistance would only be infertile,and frequently destroy or the atrial special technical applicable when the emergency smother plants and impair norinal g s P measures are not eligible for assistance agricultural use.This is a normal assistance and personnel to handle under ECP.EWP differs significantly occurrence in the dynamics of hazardous materials such as asbestos, from ECP because a sponsor is required floodplain systems,but it can jeopardize petroleum products,propane;or othei . for EWP recovery work;EWP recovery the productivity of agricultural lends compressed gas containers.or other assistance does not providefinancial and adversely affect structures and potentially hazardous or toxic i assfstanoe directly to individuals but property within urban areas.As set forth compounds or materials rather to eligible sponsors. in the final rule.NRCS will now • Gra fig,shaping,and revegetating; tNRCS can provide EWP assistance consider alternative practices to address by seeding or planting,any portion of- toward upgrading damaged or the•type of damage such as: the area affected by the debris removal undersized practices for structural, . Removing and disposing the operation enduring,and long-life conservation sediment and other debris Section 624.6(c) Eligible practices, practices when technology advances or • Incorporating the sediment into the Comments were received regarding construction techniques warrant.Such underlying soil drought emergencies suggesting the modifications will be cost shared in • Offering to purchase a floodplain allowance of permanent drought accordance with Section 624.7.All easement-(see Section 624.10) measures such as drilling water wells, structural,enduring,and long-life'• Whether these sites qualify for EWP and also requested a timeframe for how conservation practices for which the assistance and what the most effective long bay or water should be provided sponsor Is required to obtain a permit alternative treatment is for eligible sites during a drought emergency. issued by a Federal,State.or local entity depends upon many factors:size of the Under the EWP Program drought shall be designed and installed to meetparticles,depth of material deposited, recovery practices are generally the permit requirements or NRCS lateral extent of the sediment and temporary in nature and are intended to standards,whichever is greater.If a debris,soil type of the underlying reduce the consequences,of a drought. structure has to be upgraded to meet material,and land use and value of the The EWP program provides for the federal permitting or other land.Floodplain easements(see Section repair or restoration to pre-disaster requirements,such modifications will 624.10)may be used if there is too much conditions.Drilling wells for livestock be cost shared in accordance with debris to incorporate or haul off-site,or watering would be considered a Section 624.7 NRCS has adopted the otherwise disposed. "betterment"above that which existed t proposal for structural,enduring;-arrtl•°---• Most-debris thatis deposited on-—:-•_=prior to the drought-and as such not ---- long-life conservation practices and has upland areas is carried from winds of eligible for EWP assistance. modified the language in the final rule hurricanes or tornadoes.Such debris Additionally,the FSA may provide to clarify that EWP assistance is not may-cover portions of several funding to drill wells for livestock available when ECP is applicable. watersheds and normally consists of watering under ECP during drought Section 624.6(c),Several comments downed trees,utility poles,and fence 'Conditions.EWP assistance typically were received that supported expansion posts;livestock and poultry carcasses; includes soil erosion prevention of eligible work to include assistance for or building materials,such as measures,prescribed grazing,or areas impacted that are beyond the (insulation,shingles,metal roofing, reseeding,which allows rangeland to fn immediate area of the waterway. metal siding,and similar non- recover more rapidly.As set forth the. NRCS acknowledges this support and biodegradable materials.Similarly,ice proposed rule,NRCS believes that EWP recognizes that agricultural storms may result in debris deposition assistance should not be used during 3 i Federal Register/Vol. 70, No.. 63/Monday, April 4, 2005/Rules and Regulations 16925 drought situations to install permanent situations were 100 percent cost--hare is Section 624.8(c)(3) Funding practices or structures,including water warranted Priorities.One comment requested that wells,irrigation systems,or purchase of Section 624.7(b)(e).Several floodplain easement acquisition should portable equipment(i.e.,water pumps) comments supported the definition set be included in the list of EWP priorities. and has maintained this limitation in forth in the proposed rule at Section Funding for floodplain easement the final rule.NRCS has removed the 624.4(e)and cost-share rate for limited acquisition has been managed provision in section 624,6(c)(4)of the resource areas.One commenter separately from EWP funding for proposed rule that allowed for requested clarification as to whether all recovery measures.This is due to providing temporary water for livestock of the criteria must be met. Congressional language as part of the and purchasing and transporting hay. The definition of a limited-resource EWP funding appropriation which has The proposal.to provide temporary area is a county where average housing designated the amount of funding that water would be duplicative of eligible values are less than 75 percent of the could be used to purchase floodplain measures under the ECP administered State average,per capita income is less easements.When NRCS receives by FSA.The proposal to purchase and than 75 percent of the national per funding for acquisition of floodplain transport hay was also eliminated since capita income,and unemployment easements,NRCS State Conservationist this activity may not achieve the results during the preceding 3 years is at least will establish ranking or priority necessary for runoff retardation and sail twice the U.S.average.To respond to watersheds to acquire floodplain erosion prevention since livestock the comments and,to clarify NRCS easements,This proposed provision is would still be allowed to graze within _ intent,the definition set forth in the adopted in the final rule with the drought-Impacted watershed area. proposed rule is being modified such clarification that the funding priorities Additionally,EWP practices during that all three criteria have to be met to apply to EWP recovery measures. drought situations should not be query for the 90 percent cost-share. • Section 624.9 Time limits.One conducted at the expense of another NRCS would use the most recent U.S. .comment recommended extending the natural resource,such as pumping or census and unemployment data to matte length of time by which recovery work :releasing water from a water body to an this determination.NRCS is not must be completed beyond 220 days extent that is environmentally adopting.the provision in the proposed due to the length of time necessary in detrimental. rule which provided the NRCS State some cases for sponsors to obtain Section 824.6(e) Implementation, Conserdationist with the authority to " , permits, Two comments were received that'- - document the limited-resource status of MRCS believes that in most cases recommended NRCS consider the"buy a'°•area within a rion-limited resource emergency recovery measures should be out"of structures,primarily houses; County by applying National census completed within the 220-day time rather than repairing the waterway to data for the three factors mentioned frame.However,Section 624.11 Waivers protect the houses.NRCS believes there above and approving the 90 percent provides authority for the NRCS Deputy is sufficient flexibility in this regulation Cost-share rate for that area.After Chief for Programs to waive any to purchase and remove houses or other further review,NRCS recognizes that provision of these regulations to the structures in cases where the removal making this determination within a non- extent allowed by law which could meets the eligibility requirements of luted-resource county may be difficult include situations where permitting,. EWP,itis the least costly alternative, since specific U.S.census and endangered and threatened species and the buy out is costly and does unemployment data may not be compliance,cultural resources;or other not involve a leasee or rentor. available.In situations where the NRC$ legal requirements result in additional Consequently,the proposed language State Conservationist believes the 90 time to complete recovery work funded, has been adopted without change is the. Percent cost-share is warranted,a ander the EWP program.Accordingly, foal rule, waiver can be requested in accordance this proposed provision is adopted in Section 624.7 Cost share assistance. with Section 624.11W vers which the final rule without change. One comment recommended allows the NRCS Deputy Chief for Section 624.10 Floodplain authorizing100 percent for exi en °grams to waive any provision of easement.One comment requested that, p g cy these regulations to the extent allowed • floodplain easements should focus on situations since sponsors may not be by law when the agency makes a written wetland and wildlife habitat restoration. able to secure funding within time determination that such waiver is in the Under the floodplain easement frame required to complete exigency best interest of the Federal government, option,a landowner offers to sell to EWP measures. Section 624.8 Assistance.NRCS did- NRCS a permanent easement that NRCS has adopted in the final rule not receive any comments on this provides NRCS with the full rights to Section 624.11 Waivers which allows provision and is adopting the change in restore and enhance the floodplain's. the MRCS Deputy Chief for Programs to the proposed rule which eliminated functions and values which include waive any provision of these regulations Section 624.8 Environment in the Lonsideration of wetland and wildlife t to the extent allowed by law when the previous rulemaking(46 FR 65677,Nov. habitat restoration.The program is not agency makes a written determinatibn 17,1981)since the information is a siubstitute for the Wetlands Reserve that such waiver is in the best interest _• __duplicative of other USDA andNRCS :.Program,also administered-by NRCS,- of the Federal government.An example regulations and policy(see 7 CFR part since many other floodplain restoration may include allowing up to 100 percent 1b;7 CFR part 650;NRCS General factors must be considered,and may be cost-,sharing for a sponsor when the Manual Title 190,Part 410;and NRCS the focus,when restoring floodplain sponsor demonstrates they have National Environmental Compliance functions within a site.Floodplain insufficientresources or finances to handbook).In the proposed rule,NRCS . easements restore,protect,maintain, contribute the 25 percent cost-share in did not identify the regulations and and-enhance the functions of wetlands an exigency situation.All exigency policies and has done so here to ensure and riparian areas;conserve natural situations do not warrant 100 percent that the public is aware of USDA and values including fish and wildlife Federal cost-share.However,through .NRCS'environmental compliance habitat,water quality,flood water the waiver provision of the final rule, regulations and policies that are retention,ground water recharge,and the agency recognizes that there may be applicable for the EWP Program. open space;and safeguard lives and t - — - 16926 Federal Register/Vol. 70, No. 63/Mo4day, AprA 4, 2005''/Mules and Regulations property from floods,drought,and the Department of Transportation procedures for Federal assistance, products of erosion.The agency has regulations have removed the voluntary administered by NRCS,under Section adopted the proposed provision in the transaction exemption,and therefore, 216,Public Law 81-516,33 U.S.C. ( final rifle without change. NRCS modified the final rale to reflect 701b-1;and Section 403 of the Section 624.10(b)(2)(ii).-Comments that NRCS will follow applicable Agricultural Credit Act of 1.978,Public were received that supported the regulation and other law twits Law 95-334,as amended by Section acquisition of non-agricultural lands determination of easement 382,of the Federal Agriculture when purchasing floodplain easements. compensation. Improvement and Reform Act of 1996, { Under the proposed rule,NRCS Section 624.10(c).Although no Public Law 104-127,16 U.S.C.2203. expanded the potential acquisition of comments were received on'this section, The Secretary of Agriculture has floodplain easements to include non- NRCS changed the language in this final delegated the administration of the EWP t agricultural lands.Structures within the regulation to accurately identify its Program to the Chief of MRCS on state, l floodplain easement maybe demolished policy related to easement modifications tribal,and private lands,and Chief of FS or relocated outside the 100-year and terminations.The agency does not on National Forest Systems lands, floodplainrwhichever costs less.This have the authority for either action, 'including any other lands that are ---element-of the �proposed-rule-wow d--NRCS d+Sds lfE W at drmitjrwrder(7�admhdaered-urrdera formal-agreement—-- -- tend to increase program costs the U.S.G.428a),In limited situations,to with the FS.The FS administers the short-term,but reduce costs to the accept land exchanges. EWP Program in accordance with the- i Federal government in the long-term,as Section 624.12 Whivers.Although- Forest Service Manuals 1950 and 3540, people and structures in non- no public comments were received on and the Forest Service Handbook agricultural areas are relocated out-of this section,NRCS is clarif}iing in the 1909.15 the floodplain.In addition,as more final rule that the MRCS Deputy Chief• Eacreage is returned to open space,the' for Programs has the authority to waive §624.2 Objective. floodplain would function in a more any provision of these regulations to the The objective of the EWP Program is j natural state with increased long-term extent allowed by law when the agency to assist sponsors,landowners,and public benefits.The agency has adopted makes a written determination that such operators in implementing emergency tho proposed provision in the final rule waiver is in the best,interest of the recovery measures for runoff retardation without change. Federal government.NRCS clarified tliat and erosion prevention to relieve Section 624.10(b)(4):Section the determination must b6 in Writing' imminent hazards to life and property 624.10(b)(4)sets forth the compensation and in the best interest of'#he,Federal created by a natural disaster that causes that NRCS will pay a landowner for the government.NRCS will,upon,request, a sudden impairment of a watershed. purchase of a floodplain easement.The make waivers available to the public in floodplain easement program is the • §624.3 Scope. � aci:erdance with the Freedohri of successor program to the Emergency information Act and lti U.S:C.3844(b}. EW Program technical and f ivancial' Wetlands Reserve Program(EWJRP)that assistance may be made available to a j NRCS administered with EWP fiords to List of Subjects in 7 CFRFart1;24 qualified sponsor,or landowners when. address the 1993 and 1995 Midwest- Disaster assistance,Floodpiahi a floodplain easement is the selected s Flood events.As a component of the easement,Flooding,hni nl4kt;thieat, alternative by the Secretory of Wetlands Reserve Program,landowners Natural disaster,Watershed imp, landowner's request when a Federal atrmenf .Agriculture,upon a qualified sponsor or received agricultural value for an EWRP easement.In the proposed rule,NRCS Ai mordingly,for the reasonsstated in indicated that it would pay a landowner emergency is declared by the President the reamble,Part 624 of Title 7 of the or when a local emergency is declared for a floodplain easement thelesser of Co a of Federal Regulations is revised,to .by the NRCS State Conservationist.The i the three following values as an read as follows: EWP Program is designed for emergency easement payment:(1)A geographic rate PART 624—EM0RGENCY recovery work,including the purchase established by the NRCS State WAtERSHED PROTECTION of floodplain easements.Emergency conservationist,if one has been watershed protection is authorized in established;(2)A value based on a Sec. the 50 States,the District of Columbia; - market appraisal analysis for- 624.1 Purpose. the Commonwealth of Puerto Rico,the agricultural uses or assessment for •624.2 Objective. U.S.Virgin Islands,Guam,the agricultural land;or(3)the landowner's 624.3 Scope. Commonwealth of the Northern Mariana offer,if onehas been made. 624.4 Definitions. Islands,and American Samoa. NRCS is making a few adjustments to- 624.5 Coordination ` the compensation section of the final .624.6 Program administration. §624.4 Definitions. rule in response to recent changes made •624.7 Cost-sharing. P g 624.8 Assistance. (a)Defensibility means the extent to to the Department of Transportation's -624.9 Time limits. which an action is: regulations to implement the Uniform 644.10 Floodplain easemerits_ (1)More beneficial than adverse in --Relocation-Assistance and-Real-Property'-624.11 WaivM.'- the extent and intensity of its Acquisition for Federal and Federally Authority:Sec.216,P.L.81-616,33 U.S.C. environmental and economic effects; - Assisted Programs,49 CFR Part 24,7 70lb-1;Sec.403.P.L.95-334,as amended, (2)In compliance with Federal,State, CFR Part 21.In particular,NRCS relied is U.S.C.2203;5 U.S.C.301. and local laws; upon an exemption for voluntary (3)Acceptable to affected individuals transactions in the former Department of §624.1 Purpose. and communities; Transportation regulations for its The Natural Resources Conservation {4)Effective in restoring or protecting valuation methodology under the Service(NRCS)andUnited States Forest the natural resources; floodplain easement component of 'Service(FS)are responsible for I . (5)Complete with all necessary EWP.The Department of Transportation -administering the Emergency Watershed components included;and published its new regulations on .Protection(EWP)Program.This part (6)Efficient in achieving the desired January 4;2005(70 FR 590).The new sets forth the requirements and outcome. i Federal Register/Vol. 70, No. 63/Monday, April 4, 2005/Rules and Regulations 16927 (b)Exigency means those situations an imminent threat to health,life,or (ii)Obtain any necessary real property that demand immediate action to avoid property is created This impairment rights,water rights,and regulatory potential loss of life or property, can also.include sediment and debris permits;and including situations where a second deposition in floodplain and upland (iii)Agree to provide for any required event may occur shortly thereafter that portions of the watershed. operation and maintenance of the could compound the impairment,,cause cora leted emergency measures. new damages or the potential loss of life §624.5 Coordination. (bEligt�ility.MRCS will provide if action to remedy the situation is not (a)If the President declares an area to assistance based upon the NRCS State taken immediately. be a major disaster area,NRCS will Conservationist's determination that the (c)Floodplain easement means a provide assistance which will be current condition of the land or reserved interest easement,which is an coordinated with the Federal Emergency watershed impairment poses a threat to interest in laud,defined and delineated Management Agency(FEMA)or its health,life,or property.This assistance in a deed whereby the landowner designee.FEMA is the lead federal includes EWP practices associated with conveys all rights and interest in the agency for Presidentially-declared the removal of public health and safety property to the grantee,but the natural disasters. threats,and restoration of the natural, landowner retains those rights,title,and (b)When an NRCS State � environment after disasters,including interest in the property which are Conservationist determines that a acquisition of floodplain easements. specifically reserved to the landowner watershed impairment exists,but the (1)Priority EWP assistance is In the easement deed. President does not declare an area to be available to alleviate exigency (d)Imminent threat means a a major disaster area,FEMA does not situations.NRCS may approve substantial natural ocburrence that coordinate assistance.In this situation, assistance for temporary correction could cause significant damage to MRCS will assume the lead,provide practices to relieve an exigency property or threaten human We in the. assistance,and coordinate work with situation until a more acceptable near future. the appropriate State office of solution can be designed and (e)(1)Limited resource area is defined emergency preparedness and other implemented. as a county where: Federal,tribal,or local agencies t21.rfimitations.(f)In cases where the f i)Housing values are less than 75 involved with emergency activities,as same type of natural event occurs percent of the State housing value appropriate. within a 10-year period and a structural average;and (c)In the case where the watershed measure has been installed or repai6d (ii)Per capita income is 75 percent or impairment exists solely on FS System twice within that period using EWP less than the National per capita lands,the FS will determine'the assistance,then EWP assistance is income;and existence of the impairment,assume the limited to those sites eligible for the-- , (iii)Unemployment is at least twice `lead,provide assistance and coordinatepurchase of a floodplain easement as' the U.S.average over the past 3 years work with the appropriate State office of described.in§624.10 of this part. based upon the annual unemployment emergency preparedness and other (ii)EWP assistance will not be used figures. Federal,tribal,or local agencies to perform operation or maintenance, (2)NRCS will use the most recent involved with emergency activities,as such as the periodic work that is National census'Information available appropriate. necessary to maintain the efficiency and when determining paragraphs(e)(1)(1) effectiveness of a measure to perform as and(ii)of this section. §624.6 Program administration. orlpmally designed and installed. (f)Natural occurrence includes,but is (a)Sponsors.(1)When the State (iii)EWP assistance will not be used not limited to,floods,fires,windstorms, Conservationist declares that a to repair,rebuild,or maintain private or Ice storms,hurricanes,typhoons. watershed impairment exists,NRCS public transportation facilities,public tornadoes,earthquakes,volcanic may,upon request,make assistance utilities,or similar facilities. actions,slides,and drought.• available to a sponsor which must be a (iv)EWP assistance,funded by NRCS, (g)Project sponsor means a State State or political subdivision thereof, will not be provided on any Federal government or a State agency or a lagal• qualified Indian tribe or tribal lands if such assistance is found to subdivision thereof,local unit of organization,or unit of local augment the appropriations of other government,or any Native American government.Private entities or Federal agencies. tribe or tribal organization as defined in individuals may receive assistance only, (v)EWP assistance is not available for section 4 of the Indian Self- through the sponsorship of a xepair or rehabilitation of nonstructural Determination and Education governmental entity, management practices,such as Assistance Act(25 U.S.C.4sob),with a (2)Sponsors must: conservation tillage and other similar legal interest in or responsibility for the (I)Contribute their share of the project practices. values threatened by a watershed costs,as determined by NRCS,by (3)Repair of structural,enduring,and emergency;is capable of obtaining providing funds or certain services long-life conservation practices.(i) necessary land rights;and is capable of necessary to undertake fbe activity. Sponsors may receive EWP assistance carrying out any-operation and Contributions that may be applied ----••for.structural,enduring,and long-life -- maintenance responsibilities that may towards the sponsor's applicable cost- conservation practices including,but be required. share of construction costs include; not limited to,grassed waterways, (h)Watershed emergency means• (A)Cash; terraces,embankment ponds, adverse impacts to resources exist when - (B)In-kind services such as labor, diversions,and water conservation a natural occurrence causes a sudden equipment,design,surveys,contract' systems,except where the recovery impairment of a watershed and creates administration and construction measures are eligible for assistance an imminent threat to life or property inspection,and other services as ,• under the Emergency,Conservation (i)Watershed impairment means the determined by the State Conservationist; Program administered by the Farm situation that exists when the ability of or Service Agency. a watershed to c out its natural ark' (C)A combination of cash and in--kind � {if)EWP assistance may be available functions is reduced to the point where services, for the repair of certain structural i 16928 Federal Register/VoL 70, No. 63/Monday, April 4_20.05/Rules and Regulations practices(i.e.,dams and channels) environmental benefits.Documentation §624.7 Cost-sharing. originally constructed under Public Law will include,but is not limited to: (a)Except as provided in paragraph 83-566;Public Law 78--534;Subtitle H (1)Number of locations and extent of (b)of this section,the Federal of Title RV of the Agriculture and Food damage,including environmental and contribution toward the implementation Act of 1981(16 U.S.C.3451 et seq., cultural resources at risk,because of the of emergency measures-may not exceed commonly known as the Resource watershed impairment; 75 percent of the construction cost of Conservation and Development (2)Estimated damages to the values at such emergency measures,including . Program);and the Pilot Watershed risk if the threat is imminent but not yet work done to offset or mitigate adverse Program of the Department of realized; impacts as a result of the emergency Agriculture Appropriation Act of 1954 (3)Events that must occur for any measures. j (Pub.L.83-156;67 Stat.214).EWP imminent threat to be realized and the (b)If NRCS determines that an area assistance may not be used to perform estimated probability of their qualifies as a limited resource area,the operation and maintenance activities occurrence both individually and Federal contribution toward the specified in the agreement for the collectively, implementation of emergency measures covered structure project entered Into (4)Estimates of the stature,extent,and may not exceed 90 percent of the with the eligible local-organization construction-cost-of such-emergency--__ responsible for the works of costs of the emergency practices to be measures. ? constructed to recover from an actual improvement. threat or relieve an imminent threat; §624.8 Assistance. i (iii)NRCS may authorize EWP assistance for modffying damaged (5)Thorough description of the (a)Sponsors mast submit a formal d practices when technology advances or beneficial and adverse effects on request to the State Conservationist for i construction techniques warrant environmental resources,including fish assistance within 60 days of the natural 1 modifications,including when and wildlife habitat; disaster occurrence,or 60 days from the modifications are the result of federal (6)Description of water quality and date when access to the sites becomes permitting or other requirements - water conservation impacts,as available.Requests.must include a necessary to implement the recovery. appropriate; statement that the sponsors understand measure,and will be cost-shared as (7)Analysis of effects on downstream: responsibilities and are willing to described in§624.7. water rights;and pay its cost-shared percentage as well as information pertaining to the natural (iv)EMP assistance is only available (8)Other information deemed, ilisaster,including the iaature,location, when public or private landowners, appropriate by MRCS to describe and scope of the problems and the I and managers,land users,or others adequately the environmental impacts assistance needed decumeat they have exhausted or have ti)comply with the National � (b)On receipt of a formal request for- insufficient funding or other resources - Environmental Policy Act,Endangered EWP assistance,the State available to provide adequate relief from Species Act,National Historic Conservationist or designee shall applicable hazards. Preservation Act,and related Immediately investigate the emergency (4)Increased level of protection.In requirements. situation to determine whether EWP is cases other than those described in • (e)Implementation.When planning applicable and to prepare an initial cost '! paragraph(b)(3)(ili)of this section,if t}a emergency recovery practices,NRCS estimation for submission to the NRCS - 1 sponsor desires to increase the level of will emphasize measures that are•the Chief or designee.The cost estimation # protection that would be provided by. most economical and are to be will be submitted no later than 60 days i the EWP practice,the sponsor will be accomplished by using the least from receipt of the formal request from responsible for paying 100 percent of damaging practical construction the sponsor.The State Conservationist. ' the costs of the upgrade or additional _techniques and equipment that retain as will take into account the funding work. much of the existing characteristic's_of priorities identified in paragraph(c),(3) (c)Eligible practices.NRCS will only . the landscape and habitat as possible. of this section.The State provide assistance for measures that:, Construction of emergency practices ;Conservationist will forward the damage-. (1)Provide protection from additional may include,but are not limited to, _ survey report,which provides the flooding or soil erosion;and, • timing of the construction to avoid Information pertaining to proposed EWP (2)Reduce threats to life or property- impacting fish spawning,clearing of practice(s)and indicates the amount of from a watershed impairment,including righf-of-ways,reshaping spoil,debris funds necessary to undertake the sediment and debris removal in removal,use of bioengineering -Federal portion,to the NRCS Chief or floodplain and uplands;and techniques,and revegetation of designee.This informationwill be r (3)Restore the hydraulic capacity to disturbed areas.Mitigation actions submitted no later that 60 days from the natural environment to the needed to offset potential adverse receipt of the formal request from the maximum extent practical;and impacts of the EWP Program,practices sponsor,or no later than 60 days from (4)Are economically and , should be planned for installation the date funding is made available to the environmentally defensible and _ _—before,or concurrent with.the_ gee Conser bationist;whichever is - i technically sound. installation of the EWP Program later,NRCS may not commit fund's until (d)Documentation.NRCS will practices.In rare occurrences where notified by the Chief;or designee,of the document the economic rationale of mitigation cannot be installed availability of funds. proposed practices inappropriate detail ' concurrently,plans will require, . (c)Before the release of financial before the allocation of emergency mitigation be accomplished as soon as assistance,NRCS will enter into a funding,including projects under practical. Cooperative Agreement with a sponsor consideration for.floodplain easements (f)NRCS may determine that a that specifies the responsibilities ofthe in§624.10.Generally,the expected measure is not eligible for assistance for sponsor under this part,including any value of the property restored should any reason,including economic and required operation and maintenance exceed the cost of emergency measures, environmental factors or technical responsibilities.NRCS will not provide including taking into consideration feasibility, funding for activities undertaken by a Federal Register/Vol. 70, No. 63/Monday, April 4, 2005/Rules and Regulations 16929 sponsor prior to the signing of the §624.10 Floodplain easements. structural and non-structural practices. agreement between NRCS and the (a)General.NRCS may purchase An easement acquired under this part sponsor. floodplain easements as an emergency shall provide NRCS with the full (1)NRCS will only provide funding measure.NRCS will only purchase authority to restore,protect,manage, for work that is necessary to reduce easements from landowners on a- maintain,and enhance the functions applicable threats. voluntary basis, and values of the floodplain. (2)Efforts must be made to avoid or (b)Floodplain easements.(1) (7)The landowner must: minimize adverse environmental Floodplain:easements established under (i)Comply with the terms of the impacts associated with the this part will be: easement; implementation of emergency measures. (I)Held by the United States,through (ii)Comply with all terms and to the extent practicable,giving special the Secretary of Agriculture; conditions of any associated agreement; attention to protecting cultural (ii)Administered by NRCS or its and resources and fish and wildlife habitat. designee;and (iii)Convey title to the easement that (3)Funding priorities for recovery (iii)Perpetual in duration; is acceptable to NRCS and warrant that measures.NRCS will provide EWP (2)Eligible land.MRCS may the easement is superior to the rights of assistance based on the following determine land is eligible under this all others,except or exceptions to the criteria,which are ranked in the order section if title that are deemed acceptable by of importance: (i)The floodplain lands were , M1)Exigency situations; damaged by flooding at least once NRCS, )Sites whhere there is a serious,but within the previous calendar year or (tl)Structures,including buildings. not immediate threat to human life; have been subject to flood damage at witbin the floodplain easement may be otoved,or relocated her importanSites t iinre fraashu to utilities,or least twice within the previous 10 years; outsid stthee 100-yd and ear floodplain or dam, components are threatened; (grea )Other)ands within the floodplain breach inundation a . (1vJ When reviewing paragraphs would contribute to the restoration of {c)Easements acquired under this part (c)(3)(i)through(iii)of this section, the flood storage and flow,erosion may not be modified or terminated. NRCS will take into account the control,or that would improve the However,in limited situations,as following resources as they may affect determined by the Chief of NRCS and the priority,including,but not limited or when management of the easement; when in the best interest of the to: Government,Lauds would be inundated r Government,land exchanges may be (A)Sites inhabited by federally listed adversely impacted as a result of a dam authorized pursuant to(7 U.S.C.428a) threatened and endangered species or breach = and other applicable authorities. containing federally designated critical (3)Ineligible land NRCS may (d)Enforcement.(1)In the event of a habitat where the species or the critical• determine that land is inefig! under violation of an easement,the violator habitat could be jeopardized,destroyed, this section if will be given reasonable notice and an or adversely modified without the EWP (1)Implementation of restoration opportunity to correct the violation practice; practices would be futile due to"on- within 30 days of the date of the notice, (B)Sites that contain or are in the site„or"off-site"conditions; or such additional time as NRCS may Proximity to cultural sites listed on the (ii)The land is subject to an existing allow. National Register of Historic Places easement or deed restriction that (2)NRCS reserves the right to enter where the listed resource would be provides sufficient protection or upon the easement area at any time to jeopardized if the EWP practice were restoration,as determined by the Chief rergedy deficiencies or easement not installed; of MRCS,of the floodplain's functions violations.Such entry may be made at (C)Sites where prime farmland . and values;or P the discretion of NRCS when such supporting high value crops is (iii)The purchase of an easement actions are deemed necessary to protect threatened; would not meet the purposes of this important floodplain functions and '(D)Sites containing wetlands that P� P would be damaged or destroyed without per' values or other rights of the United the EWP practice; (4)Compensation for easements States under the easement.The (li)Sites that have a major effect on NRCS will determine easement landowner will be liable for any costs water quality;and compensation in accordance-with incurred by the United States as a restilt (F)Sites containing unique habitat, applicable regulation and other law, of the landowner's negligence or failure including but not limited to,areas (5)NRCS will not acquire any to comply with easement or agreement- inhabited by State-listed threatened and' easement unless the landowner accepts obligations. endangered species,fish and wildlife the amount of the easement payment • . 1(3)In addition to any and all legal and management areas,or State identified that is offered-by NRCS.NRCS reserves equitable remedies as maybe available sensitive habitats;and, the right not to purchase an easement if to the United States under applicable (v)Other finding priorities the easement compensation for a law,NRCS may withhold any easement 'established by the Ghief of-NRCS; _ -particular easement would-be too dad,-cost-share payments owing-to------- §624.9 Time limits. expensive,as determined by NRCS. landowners at any time'there is a _ (Bj NRGS may provide up to 100 material breach of the easement Funds must be obligated by the State percent of the restoration and covenants or any associated agreements: - Conservationist and construction enhancement costs of the easement. Such withheld fends may be used to completed within 220 calendar days NRCS may enter into an agreement with'• offset costs incurred by the United after the date funds are committed to the the landowner or another third party to States,in any re&edial actions,or State Conservationist,except for ensure that identified practices are retained as damages pursuant to court exigency situations in which case the implemented.NRCS,the landowner,or order or settlement agreement. construction must be completed within other designee may implement (4)NRCS will be entitled to recover 10 days after the date the funds'are identified practices.Restoration and any and all administrative and legal committed• enhancement efforts may include both costs,including attorney's fees or t t - 16930 Federal Register/Vol. 70, No. 63/Monday, April 4, 2005/Rules and Regulations i expenses,associated with any Written comments must be received provided in section 3 of that Executive i enforcement or remedial action. by RUS or carry a postmark or Order.In addition,all State and local 1 (5)On the violation of the terns or equivalent no later than May 4,2005, laws and regulations that are in conflict conditions of the easement or related ADDRESSES:Submit adverse comments with this rale will be preempted.No. agreement,the easement shall remain in or notice of intent to submit adverse retroactive effect will be given to the j force,and NRCS may require the comments by any of the following rule and is accordance with section i landowner to refund all or part of any methods: 212(e)of the Department of Agriculture payments received by the landowner • Federal eRulemeking Portal:Go to Reorganization Act of 1994(7 U.S.C. under this Part,together with interest http://Www.regulations.gov.Follow the 6912(e)),administrative appeal ! thereon as determined appropriate by -online instructions for submitting procedures must be exhausted before an jNRCS. comments. action against the Department or its 11 (6)All the general penal statutes . Agency Web Site:http:/1 agencies may be initiated. 1 relating to crimes and offenses against www.usda.govlruslindex2l Regulatory Flexibility Act Certification s the United States shall apply in the Conunents htin.Follow the instructions RUS certifies that this rule will not administration of floodplain pasnments for submitting comments. --- acquired-under-this-part -- •-.-E-mail:RUStromments@usdagov.--have significant-economic-impactrgn_a----_---- --- include in the subject line of the substantial number of small entities,as §624.11 waivers. K. defined in the Regulatory Flexr h Act message Broadband Loans and Loan g ry �' To the extent allowed by law,the Guarantees (5 U.S.C.60.1 et seg.).The RUS - NRCS Deputy Chief for Programs may . Mail:Addressed to Richard Arman, broadband program provides loans to waive any provision of these regulations Director,program Development and borrowers at interest rates and terms when the agency makes a•written Regulatory Analysis,Rural Utilities that are more favorable than those .when that such waiver is in the Service,U.S.Department of Agriculture, generally available from the private beg interest of the Federal government. 1400 Independence Avenud,SW.,STOP sector.RUS borrowers,as a result of Signed in Washington,DG,on March 21, 1522,Washington,DC 20250-4522. obtaining Federal financing,receive 2005. • Hand DeliverylCourier:Addressed economic benefits that exceed any Bruce I.Knight, to Richard Annan,Director,Program direct cost associated with complying Guef,Natural Resoar cesConservadba Development and Regulatory Analysis, With RUS regulatiuns and requirements: t Service Rural Utilities Service,U.S.Department Information Collection and (FRDoc.054098 Filed 4-•1•-05;8:45 aml of Agriculture,1400 Independence Recordkeeping Requirements RN 1 MA COpa 341"s-u Avenue,SW.,Room 5168 South The reporting and recordkeeping Building,Wasbington,.DC 20250-1522. requirements contained in the rule has Instructions:All submissions received been approved by the Office of DEPARTMENT OF AGRICULTURE must include that agency riame and the Management and Budget(OMB)under subject heading BroadbandLdaus and OMB Control Number 0572-0130, Rural Utilities Service, Loan Guarantees".All comments pursuant to the Paperwork Reduction received must identify the name of the Act of pursuant to the U.S.C.chapter 3 Reduction - '- 7 CFR Part 1738 individual(and the name of the entity, - RIM 0572-AB81 if applicable)who is submitting the Catalog of Federal Domestic Assistance comment All comments received will The program described by this two is Rural Broadband Access Loans and be posted without change to http:ll fisted in the Catalog of Federal Domestic Loan Guarantees www.usda.gov/ruslindes2/ Assistance Programs under No.10.851, Comments.htm,including any personal' Rural Telephone Loans and Loan AGENCY:Rural Utilities Service,USDA. - information provided. -Guarantees;No.10.852,Rural ACTION:Direct final rule. FOR FURTHER INFORMATION CONTACT: Telephone Bank Loans;and No.10.857, SUMMARY:The Rural Utilities Service Jonathan Cdaffey,Acting Assistant• Rural Broadband Access Loans and Administrator,Telecommunications Loan Guarantees.This catalog is (RUS),an agency delivering the U.S. Program,Rural Utilities Service,U.S. available on a subscription basis from Department ofAgrieulture's Rural Department of Agriculture,1400 the Superintendent of Documents,the Development Utilities Programs;is Independence Avenue,SW.,STOP United States Government Printing amending its regulations to revise the 1590,Room 4056,Washington,DC Office,Washington,DC 20402. definition for"eligible rural 20250-1590.Telaphone numbef(202) Telephone:(202)512-1800. I community"as it relates to the rural 720-9554,Facsimile(202)720-0810. f. access broadband loans and loan SUPPLEMENTARY INFORMATION: ExecutNe Order 12372 guarantees program. This rule is excluded from the scope DATES:This rule will become effective Executive Order 12866 of Executive Order 12372, - —• --May 19;2005;unless-m e-reeeive written-= -Tbis proposed-rude has been-- -•----- -Intargoverumental Constilt$tioni wbYeh= - adverse comments or a written notice-of determined to be not signi£icaut for may require consultation with State and intent to submit adverse comments on ., purposes of Executive Order 12866 and, local officials.See,the final rule related or before May,4,2005.If we receive therefore,has not been reviewed by the notice entitled"Department Programs such comments or notice,we will Office of Management and Budget and Activities Excluded from.Executive publish a timely document in the (OMB). Order 12372,"(50 FR 47034). Federal Regis"ter withdrawing the rale. - Executive Order 12988 Executive Order 13132,Federalism Comments received will-be considered under the proposed rule published in. This rule has been reviewed under The policies contained in this rule do this edition of the Federal Registerin Executive Order 12988,Civil Justice not have any substantial direct effect on the proposed rule section.A second Reform.RUS has determined that this States,on the relationship between the public comment period will not be held. rule is the applicable standards National Government and the States,or i ATTACHMENT E 7-CFR 3016-36-PROCUREMENT i Excerpt taken from ecfr.gov web site--httR-//www.ecfr aav/cgi=b�xt '=a4a ldx?SID9866625f0MA4928ceMM d2&&tpt,/ecfrbrowseRitle07 /7tab MUM §3016.36 Procurement. (a)States.When procuring property and services under a grant,a State will follow the same policies and procedures it uses for procurements from its non-Federal funds.The State will ensure that every purchase-order or other contract includes any clauses required by Federal statutes and executive orders and their implementing-regulations.Other grantees,and subgrantees will follow paragraphs(b)through(i) in this section, (b) Procurementstandards.(1)Grantees and subgrantees will use•their own.procurement procedures which reftect•applicable State and local:laws and regulations,provided that-the procurements .conform to applicable Federal law,and.the standards Identified,in this section. (2)Grantees and subgrantees will maintain a contract administration system which ensures that contractors perform in accordance with the terms,conditions,and specifications of their contracts or purchase orders. (3)Grantees and subgrantees will maintain a written code of standards of conduct governing the performance of their,employees engaged in the-award and administration of contracts. No employee, officer or agent of the grantee or subgrantee shall participate in selection,of in the award or administration of a contract supported by Federal funds If a conflict of interest,rga(or apparent,would be Involved.Such a conflict would arise When:.. , The employee,•officer or_agent, (Ii)Any member of his immediate,family, (iii)His or her partner,or •(iv)Ari organization which employs,oris about.to employ,any of the,above;has a financial or other- lnterest In the ficin•selected for award.The grantee's or subgrantee's ofbcerp ,employees-or agents will neithee-solicit not accept gratuities;favors or anythlrig of monetary value frorh contractors;potential contractors,or parties to subagreements.Grantee and subgrantees may set minimum rules where the financial lnterest°Is-not substantial or the gift-is an tmsolioited item of„nominal•intrinsic value.To the extent permitted by State or local law or regulations,such'standards or conduct will iaroyide for penalties, sanctions,or other disciplinary actions for violations of such standards by the grantee's and subgrantee's officers, employees,oragents,or by contractors or their agents.The awarding agency may In regulation provide additional prohibltions relative td real-,`apparent,or-potential-conflicts,of Interest. (4)Grantee and subgrantee procedures will provide for a review of proposed procurements to avoid purchase•of unnecessary or duplicative Items.Consideration should be-given to..gonsolidabin_q or breaking_ ou�tproctrremeiii�s:tii obtain a more economical purchase:llVtjere appropriate,an analysis will be made of lease versus purchase alternatives,and any other appropriate analysis to determine the most economical approach. (5}To foster greater economy and efficiency,grantees and subgrantees are encouraged to enter Into State and local intergovemmental agreements for procurement or use of common goods and services. (6)Grantees and subgrantees are encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs. (7)Grantees and subgrantees are encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions.Value engineering is a systematic and creative analysis of each contract item or task to ensure that its essential l function is provided at the overall lower cost. a (8)Grantees and subgrantees will make awards only to responsible contractors possessing the 1 ability.to perform successfully'under the terms and,conditions of a proposed procurement.Consideration will be given to such matters-as contractor,Integrity,compliance with public policy, record of past performance, and flnancial and technical resources. (9)Grantees and subgrantees-will maintain records sufficient to detail the significant'history of;a procurement.These records wiliincfude,but are not necessarily limited to the.following: 'rationale for the method of procurement,selection of contraot'type,adhtractor selection or rejection,and the basis for the contractprice. (10)drantees and subgrantees will use time and material type'contracts only— (1)After a determination that no other contract is suitable,and (ii);If the contract includes a ceiling price that the contractor exceeds at its own tisk. (11)Grantees and eutigrantees alone will be responsible,in aciordance'With"good administrative practice and sound business judgment,for the settlement of all contractual and administrative Issues arising out of procurements.These issues include,but are not limited to source evaluation,protests, disputes,and claims.These standards do not relieve the grantee or subgrantee of any contractual responsibilities under its contracts. Federal agencies will not substitute their judgment for that of the grantee or subgrantee unless the-matter is'prirriadly a federal conoem;Violations of law will be referred to the local,State,or Federal authority having proper jurisdiction. (12)Grantees and subgrantees will have protest procedures to handle and resolve disputes relating to their procurements and shall•In all instances disclose Informatien regarding the:protest to.the awarding agency.A-protestor•must exhaust all.administrative remedies with the grantee and subgrantee before.. pursuing a-protest•with the,Fsderdl agency:Rei4ews of protests-by the.Federal agencywlll be,1191ted to- (1)Violations of Federal law or regulations and the standards of this section(violations of State or local law will be-under the jurisdiction of State.or local authorities)and (ii)Violations of the grantee's or subgrantee's protest procedures for failure to review a-complainter protest. Protests received by the Fedetal agency other-than those specified above will be •referred to the grantee or subgrantee. _ (o)Competition.'(11.All procurement transactions will be conducted in a manner providing full and__. — open competition consistent wifh the standards of§3016.36.Some of flie Auations considered to 6e . restrictive of competition Include but are not limited to: (1)Placing unreasonable requirements on firms In order for them to qualify to do business, (ii)Requiring unnecessary experience and excessive bonding, -(iii)Noncompetitive pricing practices between firms or between affiliated companies, I 2 i (iv)Noncompetitive awards to,consultants that are on retainer contracts, (v)Organizational conflicts of interest, NO Specifying only a"brand name"product instead of allowing"an-equal"product to be offered and describing the performance of other relevant requirements of the procurement,and (vFi)Any arbitrary action in the procurement process. (2)Grantees and subgrantees will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-State or local geographical preferences in the evaluation of bids or proposals,except in those cases where applicable Federal statutes-expressly mandate or encourage geographic preference.Nothing in this section preempts State licensing laws.When contracting for architectural and engineering(A/E)services,geographic location may be a selection criteria provided its application leaves an appropriate number of qualified firms,given the nature and size of the project,to corripete for the contract. (3)Grantees will have written selection procedures for procurement transactions:These pnpcedures will ensure that all solicitations: (I)Incorporate a clear and accurate descCfption of the technical requirements for the material, product,or service to be procured.Such description shall not,In competitive procurements,contain features which unduly restrict competition.The description may include a statement of the qualitative nature of the material,pioduct or service to be procured,'and when necessary,shall set forth those minimum essential characteristics and standards to whfdh It must conform if it Is to satisfy its-intended use.•detaifed produdt*clficatlons should be avoided if at all possible.When it is imoiactiaal or uneconomical to,make.a clearan'd.aocurate,description of the technical-requf(ements,.a"braind.name or equar'descriptlon may be used.assa means to define the performance dr other salient requirements of a procurement.The.specific features of the named brandwhich must be rnet by offerors shall be clearly stated;and (ff) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals. (4)Grantees and subgrantees will ensure that all prequalified lists of persons,firms,or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition:Also,grantees and subgrantees will not preciude.potential bidders from quaffifying during the solicitation period. (d)Methods ofproauremernt to be followed.(i)Procurement by sma#purchase procedures.Small purchase procedures are those-relatively simple and informal procurement methods for securing services, supplies,or other property that do not cost more than the simplified acquisition threshold fixed at 41 U..S.C.403(1 i).(currentiy set-at$100,000).If small purchase procedures are used;price or rate quotations shall be obtained fiom-an adequate number of qualified sources. f2)Procurerrierrtby-sealedbids,(forma!•advertisingr-Bids aw'pabifcly(51reI a an. _a irm tlxe`d rine contract(lump sum or unit price).is--awarded to the responsible bidder whose-bid,conforming with all,the material terms and condiitlons of the Invitation for bids,lithe lowest In price.The sealed bid method is the preferred method for procuring construction,if the conditions in§3016.36(d)(2)(i)apply. (f)in order,for sealed bidding to be feasible,the following conditions should be present: (A)A complete,adequate,and realistic specification or purchase description is available; 3 i t i (8)Two or more responsible bidders are willing and able to compete effectively and for the = business;and 1 j (C)The procurement lends Itself to a firm fixed price contract and the selection of the successful Udder can be made principally on the basis of price. i (ii)If seated bids are used,the following requirements apply: (A)The invitation for bids will be publicly advertised and bids shall be solicited from an adequate number of known suppliers,providing them sufficient time prior to the date set for opening the bids; (B)The.inultattonJoy_t)J ,mh[Qb wvlll Include an specifications and pertinent attachments,shalt _ i define the items or services in order for the bidder to properly respond; (E)All bids will be publicly opened at;the time and place prescribed in the invitation for bids, (D)A firm fixed-price contract award will be made in wrung to the.lowest responsive and responsible bidder.Wherespa ifred In bidding documents;factors such as discounts,transportation cost, and-life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of;and . (Ej Any or all bids may be rejected if there Is a sound documented reason. (S)Procurement by competitive proposals.The techrilque of compeflOve proposals is ndtmally t conducted with more than,one sourca submitting an offer,-and either a fixed-price.br cost-reimbursement 3 typd contract is-awarded.'It is generally used when conditions are hot appropriate for the use of seated bids. If this meth bids. the following requirements,apply, (i))Requests for proposals will be publicized and identify all evaluation factors and their relative j importance.Any response to publicized requests for proposals shall be honored to the maximum extent practical; 0)Proposals will be solicited from an adequate number of qualified sources; (ill)Grantees and subgrantees willhave a method'for conducting technical evaluations of-the' proposals received and for selecting awartlees; (Iv)Awards will be made to the responsible firm'whose proposai1s;r6ostadvantageous:to-the- program,with-price and other factors cQnsidered;and (v)Grantees and subgrantee's may use competitive proposal procedures for qualifications-based procurement of architectural/engineering•(A/E)professional services whereby competitors'qualifications are evaluated and the most qualified competitor is selected,subject to negotiation of fair and reasonable A ._.--.compensation-+The.method;.wherepdbe-isnot-used-as-aselection,,factor,-oan-o►il)r_batiped:ln. - proburbment of AM professiona s'ervices.It cannot be used to purchase other types of services though, WE firms are a potential souree.to perform the proposed effort. (4)Procurement by noncompefitive proposals is procurement through solicitation of a proposal from only,one source,or after solicitation-of a number of squrces,competltion is determined inadequate. 4 (I)Procurement by noncompetitive proposals may be used only when the award of a contract is infeasible under small purchase procedures,sealed bids or competitive proposals and one of the following circumstances applies: (A)The item is available only from a'single source; (8)The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; (C)The awarding agency authorizes noncompetitive proposals;or (D)After solicitation of a number of sources,competition is determined inadequate. pli Cost analysis,i.e.,verifying the proposed cost-data;-the protections of the data,and the evaluation of the specific elements of costs and profits,is required. (Ili)Grantees and subgranfees may be required to submit the proposed procurement to the awarding agency for pre-award review in accordance with paragraph(g)of this section. (e)-contracting,with small and minority firms, women�business-enterprise,and labor surplus area firms.(1)The grantee and subgrantee will take all necessary affirraative steps to.assure that minority firms,,women's business enterprises,and lalior surplus area firmi.are used-when possible. (2)Affirmative steps shdlI include: (1)_Piacing qualified small and minority businesses and women's business enterprises on solicitation lists;• . (ii)Assuring that small and minority busiriesses;and women's business enterprises are solicited whenever they are potential sources; . (iii)Dividing total requirements,when economically feasible;into smaller tasks or quantities to permit maximum participation by small and minority business,.and women's business enterprises; (v)Establishing delivery schedules,where,the requirement permits,which encourage participation by small and minority business,and women's business enterprises; (v)Using the services and assistance of the Sniall Business Administration,and the Minority Business Development Agency of the Department of Commerce;and (vi)Requiring the prime contractor,if subcontracts are to be let,to take the affirrhative steps listed in paragraphs(e)(2)(1)through(v)of this section. (f)Contract cost and price,(1)Grantees and subgrantees must perform a cost or price analysis in connection with-every-procurembnt-action-including-cootragt modrfieation IWO method and degree of analysis is dependent on-the,facts surrounding the particuiar procurement situation,but as a starting point;grantees must make independent estimates before'recelving bids or proposals.A cost analysis must be performed when the offeror is required to submit the elements of his estimated cost,e.g.,under professional,consulting,and architectural engineering services contracts.A cost analysis will be - necessary when adequate price competition is lacki ig, and for sole source,procurements,including contract modifications 6fchange,orders,unless price reasonablenessban.be,estaplished on the basis of. a catalog or market price of a commercial product sold in substantial quantities-to the general public or S i based on prices set by law or regulation.A price analysis will be used in all other instances to determine the reasonableness of the proposed contract price. (2)Grantees and subgrantees will negotiate profit as a separate-element of the price for each ( contract in which there is no price competition and in all cases where cost analysis is performed.To i establish a fair and reasonable profit,consideration will be given to the complexity of the work to be performed,the risk borne by the contractor,the contractor's investment,the amount of subcontracting,the quality of its record of past performance,and industry profit rates in the surrounding geographical area for # similar work. (3)'Costs or prices based on estimated costs for contracts under grants will be allowable only to the extent that costs incurred or cost estimates_included In negotiated prices are consistent with Federal cost principles(see�30f6:?2)—Gran eesmay referennceerr own cost principles that comply witft the--� �- - {� applicable Federal cost principles. i (4)The cost plus a percentage of cost and percentage of construction cost methods of contracting s shall not be used. 6 . (g)awarding agency review.(1)Grantees and subgrantees must make available,upon request of r the awarding agency,technical-speclficatlons on proposed procurements where,the awarding agency believes sij6h review is ne0edto.ensure that the item and/or service spebified is the.6ne being-proposed for purchase.This review'deperallywill take'place.prforto the timeihe'specificationis incorporated into a solicitation documerii.HoWever,if the grantee or subgrantee desires to have the review accomplished after a'solicitation has been developed,the awarding agency may still review the specifications,with such review usually limited to the technical aspects of the proposed purchase. (2)Grantees and subgrantees-must on request make available foe awarding agency pre-award review procurement documents,such as requests for proposals or invitations for bids, Independent cost estimates,etc.when: 4 LL (F)A grantee's or subgrantee's procurement procedures or operation fails to comply with the procurement standards in this section; or '•1 #l)The procurement is expected to exceed the simplified.acquisition threshold and is to be awarded without competition or only one bid or offer is received.in response to a solicitation;or (11i)The procurement,which is expected to exceed the simplified acquisition-threshold,specifies a .� "brand name"product;or •� (Iv)The proposed award is more than the simplified acquisition threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement;or (v)A proposed contract modification changes the scope of a contract or increases the contract i amount by more than the simplified acquisition threshold, awarding a enc •def rmines that 't =(3)A grantee or subgranteWQQ be exempt from the pre-award review Fn paragrapTiTgj(2)ot`tfi)S � section it.the wa ng g- y e its procurement systems comply with the standards©fthis section. (i)A grantee or subgrantee may request that its procurement system be reviewed by the awarding agency to determine wh'ethe'r its system'meets these standard's In order for its system to be certified. Generally,these reviews shall occur where there 18'a continuous high=dollar funding,and third-party_ contracts are awarded on a regular basis. 6 1 (ii)A grantee or subgrantee may self-certify its procurement system.Such,self-certification shall not limit the awarding agencys right to survey the system.Under a self-certification procedure,awarding agencies may wish to rely on written assurances from the grantee or subgrantee that it is complying with these standards.A grantee or subgrantee will cite specific procedures,regulations,standards,etc.,as being in compliance with these requirements and have Its system available for review. (h)Bonding requirements.For construction or facility Improvement contracts or subcontracts exceeding the simplified acquisition threshold,the awarding agency may accept the bonding policy and requirements of the grantee or subgrantee_provided the awarding agency has made a determination that the awarding agency's interest is adequately protected.if such a determination has not been made,the minimum requirements shall be as follows: (1)A bid guarantee from each bidder equivalent to five percent of the bid price.The"bid guarantee" shall consistof a firm commitment such as a bid bond,certified check,or other negotiable Instrument accompanying a bid as assurance that the bidder will,upon acceptance of his bid,execute such contractual documents as may be required within the time specified. (2)A performance bond on the part of the contractor for 100 percent of the ccntraoi price.A "performance bond"Is one executed in connection with a contract to secute fulfillment of all the contractors obligations under such contract ' (3).A payMent bond on the part of the contractor for i00 percent of the contracf price A"payment bond"Is one exeduted In connection with a contract'to assurd payment as required by law of all,persons supplying labor and material in the execution of the work provided for iii the contract (1)Contract provisions.A grantee's and subgrantee's contracts must-contain provisions in paragraph (i)of this section:Federal agencies are permitted to require changes,remedies,changed conditions, access and records retention,.suspension of work,and other clauses approved by the Office of Federal Procurement Policy. - (1)Administrative,contractual, or legal remedies In instances where contractors vlolate.or breach n contract terms,and provide for such sanctions and penalties as may be appropriate.(Contracts more than the simplified acquisition threshold) (2)Termination for cause and for convenience by the grantee or subgrantee Including the manner by which It will be effected and the basis for settlement (Ail contracts in excess of$10,000) (3)Compliance with Executive Order 11246 of September 24, 1965,entitled"Equal Employment Opportunity,"as amended by Executive Order 11375 of October 13, 1967,and as supplemented in Department of Labor regulations(41 CFR chapter 60). (All construction contracts awarded in excess of $10,000 by grantees and their contractors or subgrantees) (4)Compliance with the Copeland"Anti-Kickback"Act(18 U.S.C.874)as supplemented in Department of labor regulations(29 CFR Part 3).(All contracts and subgrants for construction'or repair) 1 (5)Compliance with-the Davis-Bacon Act(40 U.S.G.06a-torMa=7yas supplemented by Department of tabor regulations•(29 CFR Part 5). (Construction contracts in excess of$2000 awarded by grantees and subgrantees when required by Federal grant program legislation) (6)Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C.327-330)as supplemented by Department of tabor regulations(29 CFR Part 5).(Construction contracts'awarded by grantees and subgrantees In excess of$2000,and in excess of$2500 for-other contracts which involve the employment of mechanics or laborers) 7 (7)Notice of awarding agency requirements and regulations pertaining to reporting. i - t (8)Notice of awarding agency requirements and regulations pertaining to patent rights with respect { to any discovery or invention which arises or Is developed In the course of or under such contract. (9)Awarding agency requirements and regulations pertaining to copyrights and rights in data. -(10)Access by the grantee, the subgrantee, the Federal grantor agency,the Comptroller General of s the United States,or any of their duly authorized representatives to any books,documents,papers,and records of the contractor which are directly pertinent to that specific contract for the purpose of making. audit,examination,excerpts,and transcriptions. 11 Retention of all required recor s fort ree ears a er.grantees or sub rantee�make final--- - i payments acid all other pending matters are closed. (12)Compliance with all applicable standards,orders,or requirements issued under section 306 of the Clean Air Act(42 U:S.C..1857(h)),section 508 of the Clean Water Act(33 U.S.C.1368),Executive { Order 11738,and Environmental Protection Agency regulations(40 CFA part 15).(Contracts, subcontracts,and subgratits of amounts in excess of$100,000) (13)Mandatory standards and policies,relating to energy efficiency which are contained in the state energy conservation plan issued ib-compllance with th6 frnergy-Policy and Conservation Act(Pub. L.94- 163,89 Stat.871)- [p3 FR 8044,8087,Mar.11,1988,as amended at 60 FR 19639,19841,Apr.19,19951 t - .i I ( ATTACHMENT F NRCS SUPPLEMENT TO OSHA PARTS 1910 AND 1926 Appendix F MRCS Supplement to OSHA Parts 1-910 and 1926 The NRCS Supplement to OSHA Parts 1910 and 1926 is included in NRCS construction contracts and recommended for other contracts,such as CLO contracts,in which the NRCS is involved.It contains requirements that are not included in the OSHA requirements.It also emphasizes specific safety requirements that are covered in OSHA Parts 1910 and 1926. (210-Vr-NEH,Amend.69,July 2012) • Appendix F NS.CS Supplement to OSHA Parte 1910 Part 645 and 1926 National Engineering handbook I �I I 1 I i - :I - Y - E 'E F-H (210-VI-NEE,Amend 0,July 2012) i i NATURAL RESOURCES CONSERVATIONSERVICE SUPPLEMENT TO OSHA PARTS 1920 AND 1926 CONSTRUCTION INDUSTRY STANDARDS AND INTERPRETATIONS 'The Contractor shall comply with OSHA(Occupational Safety and Health Administration)Parts 1910 and 1926, Construction Industry Standards and Interpretations,and with this supplement. Requests for variances or waiver from this supplement are to be made to the Contracting Officer in writing supported by evidence that every reasonable effort has been made to comply with the contractual requirements. A written request for a waiver or a variance shall include-- (t)Specific reference to the provision or standard in question; (2)An explanation as to why the waiver is considered justified;and :(3)The Contractor's proposed alternative,including technical drawings,materials,or equipment specifications needed to enable the Contracting Officer to render a*decision. No waiver*or variance will be approved If it endangers any person. 'The Contractor shall not proceed under any requested revision of provision until the Contracting Officer has given written approval. The,Contractor is to hold and save'harmless the Natural Resources Conservation Service free from any'ctaims or causes of action whatsoever resulting from the Contractor or subcontractors proceeding under a waiver or approved variance. Copies of OSHA Paris 1910 and-1926,Construction Industry Standards add Interpretations,'may be obtained from: Superintendent of Documents US.Government Printing Office Washington,D.C: 20402' lA GENERAL CONTRACTOR REQUIREMENTS; -1.1-SAFETY PROGRAM. Each Contractor is to demonstrate that he or she has facilities for"conducting a safety program comm6h§urate with the work under contract The Contractor is to submit in writing a proposed comprehensive safety program to the Contracting Officer for approval before the start of construction operations. The program is to specifically state what provisions the Contractor proposes to take for the health and'safety of all employees,including•subcontractors and rental equipment operators. The program shalt be site specific and provide details relevant to the work to be done,the hazards associated with the work,and the actions that win be necessary to minimize the identified hazards. 1.2 PRECONSTRUCTION SAFETY MEETING. Representatives for the Contractor are to meet with the Contracting Officer(CO)or the CO's representative before the start of construction to discuss the safety program and the implementation of all health and safety standards pertinentto the work under this contract. 1.3 JOINT SAFETY POLICY COMMITTEE. The Contractor or designated on-site representative is to participate in monthly meetings of a joint Safety Policy Committee,composed oftb 'Natural Resources Censetvation Service (Contracting Local Organization in locally awarded contracts)and Contractor supervisory personnel. At these meetings the Contractor's project manager and'the Contracting Officer will review the effectiveness ofthe Contractor's safety effort,resolve current health and safety problems,and coordinate safety activities for-upcoming work 1.4 SAFETY PERSONNEL. Each Contractor is to designate a competent supervisory employee satisfactory to the Contracting Officer to administer the safety program 1.5 SAFETY MEETINGS. A minimum of one"on-the-job"or"toolbox"safety meeting is t6 be conducted each week by all field supervisors or foremen and attended by mechanics and'all construction personnel at the jobsite. The Contractor is to also conduct regularly scheduled supervisory safety meetings at least monthly for all levels of job supervision. Page 1 of 5 i 1.6 SAFETY INSPECTION. The Contractor shall perform.frequent and regular safety inspections of the jobsite, materials,and equipment,and shall correct deficiencies. - i 1.7 FIRST AID TRAINING. Every Contractor foreman`s work crew must include an employee who has a current first aid certificate from the Mine Safety and Health Administration,American Red Cross,or other state-approved organization. 1.8 REPORTS. Each Contractor is to maintain an accurate record of all job-related deaths,diseases,or disabling j injuries. The records shall be maintained in a manner approved by the Contracting Officer. A copy of all reports is to be.provided to the Contracting Officer. All fatal or serious injuries are to be reported immediately to the Contracting Officer,and every assistance is to be given in the investigation of the incident, including submission of a comprehensive narrative report to the Contracting Officer. Other occurrences with serious accident potential, such as equipment failures, slides,and cave-ins,must also be reported immediately. The Contractor is to assist and Cooperate fW1y with the Contracting Officer in conducting accident investigations. ,The Contracting Officer is { to be furnished all information and data pertinent to investigation of an accident. -- 1.9 CERTIFICATION OF INSURANCE. .Contractors are to provide the Contracting Officer or his or her j authorized representative with certificates of insurance before the start of operations indicating full compliance I with State Worker's Compensation statutes,as well as other certificates of insurance required under the contract. 2.0 FIRST AID AND MEDICAL FACILITIES: 2.1 FIRST AID KITS.A 16-unit first aid kit approved by the American Red Cross is to be provided at accessible, ?veil-identified,locations at the ratio of at least 1 kit for each 25 employees. The first aid kits are to be moisture proof and dust tight,and the contents of the kits are to be replenished as used or as they become ineffective or Y outdated. 2.2 EMERGENCY FIRST AID. At least.o4e employee certified to administer emergency first aid must be f available on each shift and duly designated by the Contractor to care for injured employees. The names of the i� certified.employees shall be posted at the jobsite. ' 2.3 COMMUNICATION AND TRANSPORTATION. Prior to the start of-work, the Contractor is to.make- necessary arrangements for prompt and dependable communications,transportation, and medical care for injured ' employees. At least one Stretcher and'two blankets shall be readily available for transporting injured employees. i 2.4 FIRST AID AND MEDICAL REPORTS. TJre Contractor is to maintain a record system for first aid and medical troatment•on the jobsite. Such records are to be readily available-to the Contracting Officer and are to include- (a). A daily treatment log listing chronologically all prsobs treated for occupational injuries and illnesses,• • (b) Cumulative record of injury for each-individual;, (c) Monthly statistical records of occupational•injuries,.classified by type and nature of injury;and- 1 (d) Required records for worker's compensatiop. 2.5 SIGNS ANI)DIRECTIONAL MARKINGS. Adequate identification and directional markers are to be provided-to readily denote,the location of all first aid stations. .7 2.6 EMERGENCY LISTING. A listing of telephone numbers and addresses of doctor,rescue squad,hospital, police,and fire departments is to be provided at all first aid locations, 3,0 PHYSICAL QUALIFICATIONS OF EMPLOYEES: 1 3.1 GENERAL REQUIREMENTS. Persons employed throughout the contract are to be physically qualified to perform their assigned duties. Employees must not knowingly be permitted or required to work while their ability or alertness is impaired by fatigue:,illness,or any other reason that may jeopardize themselves or others. { Page 2 of5 3.2 HOIST OPERATORS. Operators of cranes,cableways,and other hoisting equipment shall be examined annually by a physician and provided with a certification stating that they are physically qualified to safely operate hoisting equipment. The Contractor is to submit a copy of each certification to the Contracting Officer. 3.3 HEAVY EQUIPMENT OPERATORS. It is recommended that operators of trucks and heavy construction equipment be given physical examinations to determine if they are physically qualified to perform their assigned work without endangering themselves or others. 3.4 MOTOR VEHICLE OPERATORS, Operators of motor vehicles engaged primarily in the transportation of personnel are to be 18 years of age or older and have a valid state operator's permit or license for the equipment being operated. The operator;must have passed a physical examination administered by a licensed physician within the past year showing that they are physically qualified to operate vehicles safely. 4.0 PERSONAL PROTECTIVE EQUIPMENT: 4.1 HARDHAT AREAS. The entire jobsite,with the exception of offices,shall be considered a hardhat area. All persons entering the area are,without exception,required to wear hardhats The Contractor shall provide hardhats for visitors entering hardhat areas. 4.1.1 LABELS. Hardhats shall bear a manufacturer's label indicating design compliance with the appropriate ANSI(American National Standards Institute)stand4rd. 4.2 POSTING. Signs at least 3 by 4 feet worded as follows with red letters(minimum 6 inches high)and white background shall be erected at access points to designated hardhat areas.• CONSTRUCTION AREA,-HARDHATS REQUIRED BEYOND THIS POINT These signs'are to be furnished and installed by the Contractor'at entries to shops,construction yards,and job access points. 4.3 SAFETY GOGGLES(DRILLERS) 4.3.1 DRILLERS AND HELPERS. Drillers and helpers operating pneumatic rock drills must wear protective safety goggles. 5.0 MACHINERY AND MECHANIZED EQUIPMENT: 5.1 SAFE CONDITION. Before any machinery or mechanized equipment is initially used on the job,it must be inspected and tested by qualified personnel and determined to be in safe operating condition and appropriate for the intended use. Operators shall inspect their equipment prior to the beginning of each shift. Any deficiencies or defects shall tie corrected prior to using the-egWpment Safety equipment,such as seatbelts,installed on machinery is to be used by equipment operators. 5.2 TAGGING AND LOCKING The controls ofpowei-driven equipment under repair are to be locked. An effective lockout and tagging procedure is to be established,prescribing specific responsibilities and safety procedures to be followed by the person or persons performing repair work. Mixer barrels are to be securely locked out before permitting employees to enter them,for cleaning or repair. 5.3 HAUL ROADS FOR EQUIPMENT 53.1.ROAD-MAINTENANCE..-Tim Contractor-shali.thaintalmall roadways,-including-haul reads-and access roads,in a safe condition so as to eliminate or control dust and ice hazards. Wherever dust is a hazard,adequate dust-laying equiptftent shall be available at the jobske and utilized to control the dust 5.3.2 SINGLE-LANE HAUL ROADS. Single lane haul roads with two-way traffic shall have adequate turnouts. Where turnouts are not practical,a traffic control system shall be provided to prevent accidents. 5:3.3 TWO-WAY HAUL ROADS. On two-way haul roads,arrangements are to be such that vehicles-travel on the right side wherever possible. Signs and traffic control devices are to be employed to indicate clearly any variations from a right-hand traffic pattern. The mad shall be wide enough to permit safe passage of opposing Page 3 of 5 E traffic,considering the type of hauling equipment used. : 5.3.4 DESIGN AND CONSTRUCTION OF HAUL ROADS. Haut road design criteria and drawings,if requested by the Contracting Officer,are to be submitted for approval prior to road construction. Sustained grades shall not exceed 12 percent and all curves shall have open-sight line with as great a radius as practical. All roads shall be posted with-curve signs and maximum speed limits that will permit the equipment to be stopped within one-half 'the minimum sight distance. 5.3.5 OPERATORS. Machinery and mechanized equipment shall be operated only by authorized qualified persons. - e 5.3.6 RIDING ON EQUIPMENT. Riding on equipment by unauthorized personnel is prohibited. Seating and safety belts shall be provided for the operator and all passengers. 5.3.7 OETTING 0_N OR OFF EQUIPMENT. Getting on or off equipment while the equipment is in motion-is z prohibited. 5.3.8 HOURS OF OPERATION. Except in emergencies,an equipment operator shall not operate any mobile or hoisting equipment for more than 12 hours without an 8-hour rest interval away from the job. 5A POWER CRANES AND HOISTS(TRUCK CRANES,CRAWLER CRANES,TOWER CRANES,GANTRY ! CRANES,HAMMERHEAD CRANES,DERRICKS,CABLEWAYS,AND HOISTS) 5.4.1 PERFORMANCE TEST.Before initial onsite operation,at 12-month intervals,and after major repairs or modification,power cranes,derricks.cableways,and hoists must satisfactorily complete aperformance test to r demonstrate.the equipment's ability to safely handle and in uctrier the xated loads.-The tests shall be conducted in the presence of a representative of the Contracting Officer.Test data shall be recorded and a copy furnished the Contracting Officer. 5.4.2 PERFORMANCE TEST—POWER CRANES(Crawler mounted,truck mounted and wheel mounted).The performance test is to be carried out as per ANSI requirements. The test is to consist of raising,towering,and •i braking the load and rotating the test load through 360°degrees at the specified boom angle or radius.Cranes equipped with jibs or boom-tip extensions are to be tested using both the main boom,and,the jib,with an appropriate test load in each case. 5.4.3 PERFORMANCE TEST DERRICKS,GANTRY CRANES,-TOWER CRANES,CABLEWAYS,AND HOISTS,INCLUDING OVERHEAD CRANES.This equipment is to be performance tested as per ANSI requirements. :5.4:4 BOOM ANGLE INDICATOR.Power cranes(includes draglines)with booms capable of moving in the vertical plane.shall be provided with a boom angle indicator in good working.order. 5.4.5 CRANE TEST CERTIFICATION.The performance test required by 5.4.2 and 5.4.3 is fulfilled if the Contractor provides the Contracting Officer a copy of a certificate of inspection made within the past 12 months by a qualified person or by a government-or private agency satisfactory to the Contracting Officer. 5.4.6 POSTING FOR HIGH VOLTAGE LINES.A notice of the 10-foot(or greater)clearance required by - OSHA 1926.550,Subpart N,shall be posted in the operator's cab of cranes,shovels,boom-type concrete pumps, backhoes,and related equipment, 5.4,2..,:-BOOM.STOPS.-Cmnes.or-denicks.with.cable.supported booms,except_iiraglines,shall have.a.device attached between the gantry ofthe A-frame and the boom chords to limit the elevatioa ofthe-boom.The device shall control the vertical motions of the boom with increasing resistance from 830 or less,-until completely stopping the boom at not over 87°above horizontal. 5.4.8 SAFETY HOOKS.Hooks•used in hoisting personnel or hoisting loads over construction personnel or in. the immediate vicinity of construction personnel shall be forged steel equipped with safety keepers.When shackles are used underthese conditions,they shall be of the locking type or have the pin secured to prohibit turning. ' 5.5 ROLLOVER PROTECTIVE STRUCTURES(BOPS) Page 4 of 5 i 5.5.1 ROLLOVER PROTECTIVE STRUCTURES. OSHA 1926,Subpart W,Overhead Protection,Sections 1001 and 1002 are applicable regardless of the year in which the equipment was manufactured and regardless of the struck capacity of the equipment 5.5.2 EQUIPMENT REQUIRING ROPS. The requirement for ROPS meeting 5.5.1 above applies to crawler and rubber-tired tractors such as dozers,push-and-pull tractors,winch tractors,tractors with backhoes,and mowers; off-highway,self-propelled,pneumatic-tired earthmovers,including scrapers,motor graders and loaders;and rollers,compactors,water tankers(excluding trucks with cabs). These requirements shall also apply to agricultural and industrial tractors and similar equipment 5.5.3 EQUIPMENT REQUIRING SEATBELTS. The requirements for seatbelts as specified in OSHA Subpart 0, Motor Vehicles,Mechanized Equipment,and Marine Operations,Section 1926.602 shall also apply to self- propelled compactors and rollers,and rubber-tired skid-steer equipment. 6.0 LADDERS AND SCAFFOLDING: 6.1 LADDERS. OSHA 1926,Subpart L-Section 450. Ladders shall be used as work platforms only when use of small hand tools or handling of light material is involved. No work requiring lifting of heavy materials or substantial exertion shall be done from ladders. a 6.2 SCAFFOLDING. OSHA 1926,Subpart L-Section 451. Scaffolds,platforms or temporary floors shall be provided for all work except that which can be done safely from the ground or similar footing. 6.3 SAFETY BELTS,LIFELINE,AND LANYARDS. OSHA 1926,Subpart E,Section 104. Lifelines,safety belts and lanyards independently attached or attended,shall be used when performing such work as the following when the requirements of 6.1 or 6.2 above cannot be met (a) Work on stored material in hoppers,bins,silos,tanks,or other confined spaces. (b) Work on hazardous slopes,structural steel,or poles;erection or dismantling of safety nets,tying reinforcing bars;and work from Boatswain's chairs,swinging scaffolds,or other unguarded locations at elevations greater than 6 feet (c) Work on skips and platforms used in shafts by crews when the skip or cage does not block the opening to within I foot of the sides of the shaft,unless cages are provided. Page 5 of 5 i t f L 2 e `•. This page intentionally left blank I 8 ' t 3 6 g� s - f t - i i t I ATTACI3MENT G NRCS-ADS78 -ASSURANCES RELATING TO REAL PROPERTY ACQUISITION SF-270 -REQUEST FOR ADVANCE OR REIMBURSEMENT SF-425 -FEDERAL FINANCIAL REPORT US.Department ofAgriculture NRCS-ADS-78 Natural Resources Conservation Sen.-ice 5-88 ASSURANCES RELATING TO REAL PROPERTY ACQUISITION A. PURPOSE—This form is to be used by sponsor(s)to provide the assurances to the Natural Resources Conservation Service of the U.S.Department of Agriculture which is required in connection with the installation of project measures which involve Federal financial assistance furnished by the Natural Resources Conservation Service. B. PROJECT MEASURES COVERED— Name ofproject Identity of improvement or development location ' C- REAL PROPERTY ACQUISITION•ASSURANCE This assurance is applicable if real property interests were acquired for the installation of projectmeasures,and/ if persons,businesses,or farm operations were displaced as a result of such installation;an dthis assurance was not previously provided for in the watershed,project measure,or other type of plan. If this assurance was not previously provided,the undersigned sponsors)hereby assures they have complied,to the extent practicable under State law,with the.requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act(42 U.S.0 4601-4655),as implemented in 7 C.F.R.Part 21. Any exceptions taken from the real property acquisition requirements under the authority of 42 U.S.C.4655 because of State law have been or is hereby furnished to the Natural Resources Conservation Service along with the opinion of the ChiefLegal Officer of the State containing a full discussion of the facts and law famished. D. ASSURANCE OF ADEQUACY OF REAL PROPERTY RIGHTS The undersigned sponsor(s)hereby assures that adequate real property rights and interests,water rights if applicable, permits and licenses required_by Federal,State,and local law,ordinance or regulation,and related actions have been taken to obtain the legal right to install,operate,maintain,and inspect the above-described project measures,except for structures or improvements that are to be removed,relocated,modified,or salvaged before and/or during the installation process. This assurance is given with the knowledge that sponsor(s)are responsible for any excess costs or other conse- quences in-the event the real property rights-are-found to be inadequate during the*installation process. - Futthermore,this assurance is supported by an attorney's opinion attached hereto that certifies an examination of the real property instruments and files was made and they were found to provide adequate title,right,permission and authority for the-purpose(s)for which the property was acquired. 'this loon wss electronkAl pmducad by National Pmdudion Sar&ft Stell If any of the real property rights or interests were obtained by condemnation(eminent domain)proceedings,sponsor(s) • further assure and agree to prosecute the proceedings to a final conblusion and pay such damages as awarded by the court. I _ This action authorized (Nameofsponsor) at an-official meeting T i By: on Title: day of 3 Date: at - i j State of Attest: (Name) 1 ' (Title) This action authorized (Name ofSponsar) at an oBiclal meeting By: on -� Title: day of Date: at I State of • - , - •Attest: (Title) i .t i i • i . RESOLUTION 2013-325 ADOPTED DOC ID: 8739 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO.2013-325 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON APRIL 23,2013: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Sponsor Concurrence to the Damage Survey Report of the USDA's Natural Resource Conservation Service,Form SF424 entitled"Application for Federal Assistance",and any and all other related documents,relative to the request for funding from the Emergency Watershed Protection Program for repair of damaged dikes on certain agricultural parcels in the Town,subject to the approval of the Town Attorney. Elizabeth A.Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Christopher Talbot, Councilman SECONDER:Louisa P.Evans,Justice AYES: Dinizio Jr,Ruland,Doherty,Talbot,Evans,Russell