# Presentation: 219917

## Beth Schuler, National HELC Specialist
and
Lee Davis, Acting Wetlands Conservation Program Leader 

*and*
- Lee Davis, Acting Wetlands Conservation Program Leader

**United States Department **
**of Agriculture**
**Natural Resources Conservation **
**Service**

- Highly Erodible Land and Wetland Conservation Provisions

*State Office Review**of Audit Recommendations**June 24, 2004*

## Agenda Items

- Review Audit Recommendations
- Discuss Statutory Requirements
- Discuss GM 340, Part 413 and NHEAIR
- Compliance Review Procedures and Problems
- Questions and Answers
- Additional Training Needs

## Audit Results

## OIG Audit 10099-8-KC, September 2002, Natural Resources Conservation Service Compliance With Highly Erodible Land Provisions

GAO Audit GAO-03-418, April 2003, Agricultural Conservation, USDA Needs to Better Ensure Protection of Highly Erodible Cropland and Wetlands

- GAO Audit GAO-03-418, April 2003, Agricultural Conservation, USDA Needs to Better Ensure Protection of Highly Erodible Cropland and Wetlands

## Results

- An unwillingness of the agency to find USDA participants in violation of the provisions.
- Compliance status reviews not being completed correctly or at the appropriate time. NRCS Status Review Process flawed.

## Results

- FSA is granting Good inappropriately and without adequate documentation.
- NRCS employees inappropriately granting variances.

## Results

- NFSAM unclear or conflicting within the parts on many procedures.
- NFSAM has out of date information and is not available on-line.
- Conflicting policy between NRCS’s NFSAM and FSA’s 6-CP.

## Results

- Employees (NRCS) do not possess the skills necessary to implement the HELC/WC provisions.

## Implementation Changes

## NRCS has agreed to revise the NFSAM to address :
Conflicting policies both within the NFSAM and between the NFSAM and 6-CP.
Update inaccurate policy.
Make the  NFSAM available on-line .

- Conflicting policies both within the NFSAM and between the NFSAM and 6-CP.
- Update inaccurate policy.
- Make the  NFSAM available on-line .

*Agency Policy*

## Policy  Coordination

- 	NRCS has been working to coordinate revisions of both NRCS and FSA policy to eliminate the conflicts between the two agencies.

## Agency Training

- 	The agency has agreed to _**provide training**_ to the States on implementation of the HELC/WC provisions, including the proper use of variances, exemptions, and mediation.

## 	NRCS has agreed to implement changes in the status review procedure, making the process a web-based procedure.

*Agency Accountability*

## Statutory and/or Regulatory Requirements

## Statutory Authority for HELC/WC and Swampbuster

- The Food Security Act of 1985
- The Food, Agriculture, Conservation, and Trade Act of 1990
- The Federal Agricultural Improvement and     Reform Act of 1996
- The Farm Security and Rural Investment Act     of 2002

## Federal Regulation

- 	7 CFR Part 12, Interim Final Rule
- 	September 6, 1996
- Highly Erodible land and Wetland Conservation

## 2002 Farm Bill Change

- 	Only NRCS employees may make a determination of HELC/WC violations to FSA.

## 	The Farm Security and Rural Investment Act of 2002, Section 2002(a)(2) and Section 2002(b) amended Sections 1211 and 1221 of the Food Security Act of 1985 by adding Sections 1211(b) and 1221(e):

- Statutory Change

## 	“The Secretary shall have , and shall not delegate to any private person or entity, authority to determine whether a person has complied with [the provisions].” 

- Statutory Change

## Agency Administrative Responsibilities for HELC/WC

- 7 CFR 12.6(a) – *A determination of ineligibility for benefits in accordance with the provisions of this part shall be made by the agency of USDA to which the person has applied for benefits.*

## Responsibilities, cont.

*   **All determinations required to be made under the provisions of this part shall be made by the agency responsible for making such determinations as provided in this section.*

## Administration by NRCS – 7 CFR 12.6(c)

- 	NRCS is responsible for the following:
- Whether land is highly erodible or a wetland type or a converted wetland
- Whether HEL is predominant on a field
- Whether a conservation plan or conservation system is based on the local FOTG
- Whether the conservation system meets the soil protection requirements

## 7 CFR 12.6(c) cont.

- Whether a CW has a minimal effect on the functions and values of the wetland
- Whether a temporary variance should be granted from the requirements of the conservation system or plan

## 7 CFR 12.6(c) cont.

- Whether conversion of a wetland is for the purpose of or makes the production of an agricultural commodity possible
- Whether an FW or FWP has been abandoned

## 7 CFR 12.6(c) cont.

- Whether planting an agricultural commodity on a wetland is possible under natural conditions
- Whether maintenance of existing drainage exceeds the scope and effect of the original drainage

## 7 CFR 12.6(c) cont.

- Whether a plan for mitigation will be approved and if the mitigation is completed according to an approved mitigation plan
- Whether all technical information relating to the determination of a violation and severity of a violation has been provided to FSA

## Certifications – 7 CFR 12.7

- A USDA participant may self-certify compliance with the provisions
- Certifications of compliance must be made available to other agencies
- Self-certifications do not relieve the participant of the responsibility for compliance with the provisions

## Highly Erodible Land Responsibilities

- Develop and maintain HEL legends
- Make soil surveys for the purpose of identifying all HEL cropland
- Provide technical guidance to conservation districts on conservation plans and systems

## Changing Field Boundaries

- When field boundaries are changed to include areas that were included in a field that was previously determined to be HEL, the land shall continue to be subject to the provisions, unless the NHEL portions can be excluded

## Conservation Plans and Systems

- Conservation Plans and Systems must meet the requirements of the local FOTG and the soil protection requirements, as follows:
- Substantial reduction in soil loss – non sodbuster fields
- No substantial increase in soil loss – sodbuster fields

## Wetland Conservation

- Identify and maintain a county hydric soils legend
- Coordinate with the Fish and Wildlife Service regarding wetland plants
- Make or approve* wetland determinations or delineations and certifications, functional assessments, mitigation plans, catgegorical minimal effects
- *NRCS is the only agency allowed to make determinations of violations in accordance with the 2002 Farm Bill revision.

## Wetlands cont.

- Investigate complaints and make technical determinations regarding potential violations
- Develop a process to coordinate with the FWS at the local and State levels

## Policy

## Agency Policy

- NFSAM is on the WEB!  The 4th Edition of the NFSAM contains the following Parts:
- 510  General Information
- 511  Highly Erodible Land Determinations
- 512  Conservation Systems and Plans
- 518  Compliance Status Reviews
- 519  Quality Assurance
- 520  Technical Assistance, Exemptions, Variances, and Investigations
_**URL:**_
- http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_180.htm

## NFSAM Team

- In order to complete the remaining sections (wetland) of the NFSAM, a team will be formed.
- The wetland sections, Parts 513, 514, 515, 516, and 517 will be completed by no later than December 2004.
- Other parts, such as exhibits and appendices will also be completed by the team

## GM 340 Part 413

- Overall agency policy on reviews, including HELC/WC compliance reviews will be set forth in the General Manual in Title 340, Part 413
- This portion of the GM is scheduled for release in the near future by the SPA deputy area of NRCS.

## NHEAIR

- The *National Handbook for Evaluations, Audits, Investigations, and Reviews* is being developed to provide a handbook containing all procedures for all reviews conducted by the agency.
- This handbook is scheduled for release in the near future by the SPA deputy area of NRCS.

## HELC,“Sodbuster” and “Swampbuster” Provisions

- Loss of certain USDA Program benefits by persons who:
- Produce an annual agricultural commodity on HEL cropland that has an erosion rate that does not meet the definition for substantial reduction in soil erosion.

## HELC,“Sodbuster” and “Swampbuster” Provisions

- Produce an annual agricultural commodity on an HEL cropland field that has been Sodbusted from _*NATIVE *_vegetation has erosion rates that do not meet the defintion for no substantial increase in soil erosion.
- Convert wetlands for the purpose of making possible the production of an agricultural commodity (annually-tilled crop), unless an exemption applies.

## USDA Benefits AffectedBoth HELC/Sodbuster and WC/Swampbuster($170 Billion over the next 6 years)

_**Commodity Programs**_
- Watershed Protection and Flood Prevention Act
- Dairy Marketing Assistance Program
- Agricultural Market Transition Act (AMTA) Production Flexibility Contract Payments.
- Farm Operating Loans issued under the Consolidated Farm and rural Development Act.

## USDA Benefits AffectedHELC/Sodbuster Only

- Farm storage facility loans (_not subject to WC or Swampbuster_).
- Disaster payments (_not subject to WC or Swampbuster_).
- Agricultural Credit Act of 1976 payments (_not subject to WC or Swampbuster_).

## USDA Benefits Affected

_**$ 18 Billion Conservation Programs**_
- Agricultural Management Assistance (AMA)
- Conservation Security Program (CSP)
- Conservation Reserve Program (CRP)
- Environmental Quality Incentives Program (EQIP)
- Farmland Protection Program (FPP).
- Grassland Reserve Program (GRP)
- Wetlands Reserve Program (WRP)
- Wildlife Habitat Incentives Program (WHIP)

## “Triggers for HELC and Sodbuster”

- When there has been an annual agricultural commodity produced on HEL land under either of the following circumstances:
- Land with a pre-1985 cropping history – where soil erosion from any source (wind, water, or gully) exceeds the definition for substantial reduction.
- 	(NFSAM, Part 512)
- Land that is broken out of *NATIVE*  vegetation – where soil erosion from any source (wind, water, or gully) exceeds the definition for no substantial increase.  (NFSAM, Part 512)

## “Triggers” For Swampbuster Violation

- Applies only to production of agricultural commodities as defined by the 1985 Food Security Act.
- Production of an agricultural commodity on a wetland converted between 12/23/85 through 11/28/90
- Making the production of an agricultural commodity possible on a wetland converted after 11/28/90

## Compliance Reviews 

## Purpose

- 	To ensure customer conformance with the Highly Erodible Land and Wetland Conservation provisions

## Clarification of Tract Replacement Needs

- Randomly selected tracts must be replaced if the tract is not:
- Subject to the HELC/WC requirements
- Does not have a potential for wetlands

## Clarification of Tract Replacement Needs

- 	All randomly selected tracts must be reviewed for both HEL and Wetland compliance regardless of whether or not there are current determinations for either HEL or Wetlands existing on the tract.

## Contacts

- Beth Schuler, National HEL Specialist
- Phone:  (615) 646-9741;
- FAX:  (615) 673-6705
- Email:  _[beth.schuler@usda.gov](mailto:beth.schuler@usda.gov)_

## Contacts

- Lee Davis, Acting National Wetland Manager
- Phone:  (936) 569-8999
- FAX:  (936) 564-5415
- Email:  _[lee.davis@tx.usda.gov](mailto:lee.davis@tx.usda.gov)_

## Question and Answer Session

## Contacts

- LeRoy Hall, Compliance Review Manager
- Phone:  (202) 720-0040
- FAX: (202) 720-9030