# Presentation: 219918

## Highly Erodible Land and Wetland Conservation; Compliance Reviews; Appeals; and Equitable Relief

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

- Highly Erodible Land and Wetland Conservation; Compliance Reviews; Appeals; *and* Equitable Relief

## Topics to be covered:		

*Highly Erodible Land and Wetland Conservation Compliance*
*Compliance Status Reviews*
*Conservation Program Appeals*
*Conservation Program Equitable Relief*

## Highly Erodible Land and Wetland Conservation Compliance - 2002 Farm Bill Changes

- Only a _**trained**_** **NRCS employee may make a determination of HELC/WC violations to FSA.
- 	The Farm Security and Rural Investment Act of 2002, Section 2002(a)(2), Conservation Compliance amended Sections 1211 and 1221 of the Food Security Act of 1985 by adding Section 1211(b) and Section 1221(e):
***	******“***_***The Secretary shall have , and shall not delegate to any private person or entity, authority to determine whether a person has complied with this section.” ***_

**Notes:**
Therefore, it is statutorily prohibited for anyone other than a trained NRCS employee to make determinations regarding compliance with the HELC/WC provisions.  This iincludes making compliance status reviews.

## Recent Audits 		

*GAO Audit: 2001-2002*
- _[http://www.gao.gov/atext/d03418.txt](http://www.gao.gov/atext/d03418.txt)__[ ](http://www.gao.gov/atext/d03418.txt)_
*OIG Audit: 1999-2000*
- _[http://www.usda.gov/oig/webdocs/10099-8-KC.pdf](http://www.usda.gov/oig/webdocs/10099-8-KC.pdf)_
- _[http://www.usda.gov/oig/webdocs/10099-9-KC.pdf](http://www.usda.gov/oig/webdocs/10099-9-KC.pdf)_

**Notes:**
The OIG Audit was prompted by a whistleblower complaint.  The GAO Audit was requrested by Iowa Senator Harkin.

## GAO Audit Results

- Compliance status reviews not being completed correctly or at the appropriate time.
- An unwillingness of the agency to find USDA participants in violation of the provisions.
- Good Faith being given inappropriately
- NFSAM unclear or has conflicting procedures.
- Employees do not possess the skills necessary to implement the provisions.

## OIG Audit Results

- Current NRCS Status Review Process flawed.
- Conflicting policy between NRCS and FSA.
- Employees inappropriately granting variances, good faith exemptions, and use of mediation.
- NFSAM has conflicting information; out of date information; and is not available on-line.
- Employees need training.

## Revise the NFSAM and make available on-line by August 2003 – in process
http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_180.htm 
Provide training by May 2004 – under development
Revise the Compliance Review Process by the 2004 Crop Year review period – functioning, enhancements being developed
Coordinate policy differences with FSA – scheduled for June 2004

- http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_180.htm
- Provide training by May 2004 – *under development*
- Revise the Compliance Review Process by the 2004 Crop Year review period – *functioning, enhancements being developed*
- Coordinate policy differences with FSA – *scheduled for June 2004*

- Recommended Items:

## Revised Procedures

_*Randomly Selected Tracts*_ that cannot be found or are not subject to both the HELC and WC provisions must be replaced in accordance with NFSAM, Part 518.03(c)
_*Authorized Variances*_ must be granted in accordance with NFSAM, Part 520:
- AC – Special Condition Variance –only when special conditions prohibit application of the conservation system due to severe weather, crop pest infestations, or crop diseases.
- AH – Special Problem Variance – Severe physical condition or death of primary farm operator; Destruction by natural disaster, fire, or similar occurrence; and NRCS error.
- AM – Minor Technical Failure – Only for very minor error in system application.
- CA – Conditionally Applying – May ONLY be used when compliance cannot be determined at the time of the review and only for Tract coming out of CRP or New land entered into USDA Benefit programs .

## Exemptions Issued by FSA

- Economic Hardship
- Good Faith
- 	NRCS must be consulted prior to the FSA COC issuing a Good Faith Exemption for either HELC or WC violation and have completed the form AD1069

## Compliance Review Application

- National Bulletin 330-4-5 published on Jan. 30.
- _[https://my.nrcs.usda.gov](https://my.nrcs.usda.gov/)_
- Accountability Tab, IAS 2004 Box
- WebTCAS ID Provides Access
- Integrated Accountability System Home Page

## Slide 11

## Slide 12

## Web Application Features

- Data Entry Tab
- Worklist – Tracts
- Tract Category
- Tract Status
- Customer ID
- Six Parts
- Identify Farm Operator
- Link Conservation Plan

- Reports Tab
- Help Tab
- Link to the Guidance Document
- Link to NFSAM Part 518

## Web Application Summary

- Data Entry
- New Tract Number Creates New Record
- Special sections for:
- Tracts not found
- Wetland status
- Status of Incomplete Indicates Missing Data
- Status of Complete Only When Parts D, E, F, and G Data Fields Filled

## Conservation Program Appeals - 				Appealability

- National Appeals Division Rules of Procedure, 7 CFR Part 11, §11.6(a)(2):
*“**[If a decision] **is adverse to the individual appellant, and thus appealable, or is a matter of general applicability, and thus not subject to appeal....”*

**Notes:**
Appealability is determined by the following definition:

A decision is appealable if it is adverse to the individual appellant.  It is not appealable if the decision is a matter of general program applicability.

## Appealable Issues
Denial of participation in a program. 
Compliance with program requirements. 
The payment or amount of payments or other program benefits to a program participant. 
Technical determinations or technical decisions that affect the status of land even though eligibility for USDA benefits may not be affected. 

- Denial of participation in a program.
- Compliance with program requirements.
- The payment or amount of payments or other program benefits to a program participant.
- Technical determinations or technical decisions that affect the status of land even though eligibility for USDA benefits may not be affected.

- _Non-Appealable Issues_
- General program requirements applicable to all.
- Science-based and technical formulas and criteria
- Federal laws or regulations.
- State Technical Committee membership decisions made by the State Conservationist
- Procedural or technical decisions relating to program administration
- Denials of assistance due to the lack of funds or authority

## Appealability Reviews

- A participant may request that the NAD Director review the NRCS decision that an issue is not appealable. A request must be filed not later than 30 calendar days after notification that an issue is not appealable.
- CPM, Paragraph 510.02(c)

## Preliminary Process

***NRCS issues a preliminary determination***
- Letter transmitting the determination offers the following:
-     Field Review
-     Mediation

- Program Participant requests field review or mediation?

- Yes

- No

- Determination becomes a final NRCS determination _30 days from the date of the notification_

- Field review and/or mediation conducted.  _Final NRCS determination issued._

## How the Appeals Process Works

- NRCS issues a final determination or decision

- Offer right to request an appealability review from NAD.

- Is this determination or decision appealable?

- No

- Yes

- Offer appeal rights to the appropriate authority

## Title XII Programs

**Conservation Reserve Program**
***Conservation Security Program***
**Environmental Quality Incentives Program**
**Farm and Ranchland Protection Program**
***Grassland Reserve Program***
**Highly Erodible Land Conservation**
**Wetland Conservation**
**Wetlands Reserve Program**
**Wildlife Habitat Incentives Program**

## Title XII Program Flowchart

- NRCS issues a final determination that is appealable.

- Has there been a decision by FSA/COC employee, officer, member?

- Offer the following rights:
- Appeal to the FSA
- COC_ (__***optional***_);
- Mediation; or
- Appeal to NAD

- Offer the following rights:
- Appeal to the FSA
- COC_ (__***mandatory***_);
- or
- Mediation

**NOTE: **Further** **Appeal rights, including rights to appeal to NAD will be provided by FSA.

- No

- Yes

**NOTE:**  Mediation is only offered at this stage if it has not been utilized previously

## Non-Title XII Programs

**Agriculture Management Assistance Program**
***Colorado River Basin Salinity Control Program ***
**Emergency Watershed Projects (including Floodplain Easements)**
***Forestry Incentive Program ***
***Great Plains Conservation Program ***

**Flood Prevention and Watershed Protection Programs (PL-566 and PL-534 Land Treatment Contracts)**
***Rural Abandoned Mine Program ***
***Rural Clean Water Program ***
***Soil and Water Conservation Program***
***Water Bank Program***

## Non-Title XII Program Flowchart

- NRCS issues a final determination or decision that is appealable.

- Is this a non-title XII program?

- Go back to the Title XII Process Slide

- No

- Yes

- Offer the following rights:
- Appeal to the STC;
- Mediation; or
- Appeal to NAD

**NOTE:**  Mediation is only offered at this stage if it has not been utilized previously

## Recap of the Appeals Process

- 1.  NRCS issues a final determination or decision

- b. No

- 3.  Offer right to request an appealability review from NAD.

- b. Yes

- a. No

- a. Yes

- 6. Offer the following rights:
- Appeal to the STC;
- Mediation; or
- Appeal to NAD

- 4. Title XII Program?

- 2. Appeal-
- able?

- 5. FSA/COC employee, officer, member decision?

- b. Yes

- a. No

- 7. Offer the following rights:
- Appeal to the FSA
- COC_ optional_);
- Mediation; or
- Appeal to NAD

- 8. Offer the following rights:
- Appeal to the FSA
- COC_ mandatory_);
- or
- Mediation

**NOTE: **Appeal rights to NAD will be provided by FSA.

## Other Appeal Issues

**Conservation District Participation**
- Conservation District representatives should be encouraged to participate in field visits.
- District officials may be able to provide additional information and evidence that could lead to resolution of the issue prior to appeal.

**Correcting a Determination**
- If, on the evidence obtained during the field visit, it is found that the preliminary technical determination was incorrect, it is appropriate to provide a corrected technical determination.
- Any corrected technical determinations resulting from a field review must be issued within 30 calendar days of the visit.
- The corrected determination will be a Final Determination.

## Burden of Proof in a NAD Appeal

- The appellant has the burden of proving that the NRCS technical determination or technical decision was erroneous by a preponderance of the evidence.
-   This means that the appellant must show that it is more likely than not that the agency's technical determination or technical decision is wrong.
- CPM 510.51

## NAD Director Reviews 

- Both parties to the appeal may request a NAD Director review of a hearing officer determination. The timeframes are as follows:
- NRCS Chief - Not later than 15 business days after the date on which the agency receives the NAD hearing officer's decision.
- Appellant - Not later than 30 calendar days after the date the appellant receives the hearing officer's decision.

## Implementing NAD Decisions 

- The agency is required to implement all final NAD decisions not later than 30 calendar days after the notice of the final determination.
- Timely implementation occurs when the first of the steps required to implement a final decision is initiated.

## Conservation Program Equitable Relief Provisions, 2002 Farm Bill

_*Section 1613 of the 2002 Farm Bill*_ provides that an STC may grant relief where a contract violation or non-compliance determination has been issued. Participant must have either:
_*Acted in Good Faith*_ is incorrectly applying the required conservation system, practice, or operation and maintenance component as directed by an NRCS employee.
_*Made a Good Faith Effort*_ is a participant’s efforts at applying the required conservation system, practice, or operation and maintenance component without an intent to defraud NRCS.

**Notes:**
See handout of PL 107-171, §1613, Equitable Relief

Part 509, Conservation Programs Manual has been drafted and is undergoing review as is the rule, 7 CFR 635.

## Limitations to Providing Equitable Relief

The total amount of equitable relief to an NRCS conservation program participant shall not exceed $20,000.

A program participant who has already received $5,000 or more in relief is not eligible for any further relief.

When more than one participant is affected by the same type of advice, the total amount relief provided to the similarly situated participants shall not exceed $1 million.

- The total amount of equitable relief to an NRCS conservation program participant shall not exceed $20,000.
- A program participant who has already received $5,000 or more in relief is not eligible for any further relief.
- When more than one participant is affected by the same type of advice, the total amount relief provided to the similarly situated participants shall not exceed $1 million.

## Exclusions 

Equitable relief may not be provided for either of the following:

Payment Limitations
The Highly Erodible Land and Wetland Conservation Provisions

- Equitable relief may not be provided for either of the following:
- Payment Limitations
- The Highly Erodible Land and Wetland Conservation Provisions

## Forms of Equitable Relief

- Retention and receipt of loans, payments, or other benefits.
- Continued participation in the conservation program, either in whole or in part.
- Re-enrollment of all or part of the land in a conservation program.
- Any other form of relief that the Chief has determined to be appropriate.

## Remedial Actions May Be Required

- Repair or replacement of the damaged conservation practice, conservation system, or operation and maintenance requirements.
- Purchase of additional equipment, materials, or other items that will enable the covered conservation program participant to fully comply with the program provisions.
- Revision of the conservation plan or conservation system to be implemented.
- Revision of the operation and maintenance plan.
- Remediation shall be commensurate with the overall conservation program provisions, purposes, and functions.

## Approval, Consultation, and Review

- The State Conservationist must consult with and receive approval from the appropriate Office of the General Counsel (OGC).
- A State Conservationist’s final decision for equitable relief is subject to review and reversal only by the Secretary, USDA, who may not delegate that authority.
- This provision does not limit the State Conservationist’s authority to grant waivers to specific conservation programs as provided by that program.
- The State Conservationist’s final decision is not subject to Judicial Review under Chapter 7 of Title 5 of the United States Code.

## Record Keeping

- A log of all equitable relief requests must be kept.
- This log shall be used to track the following information:
- USDA Conservation Program Participant’s name and address.
- Date of request.
- Conservation Program name.
- Type of non-compliance or violation.
- Type of relief requested.
- Whether the request is granted or denied.
- Date of STC action.
- Remedial actions required.

## For questions, assistance, training, etc. regarding the HELCWC compliance provisions, or the Compliance Review Application, please contact the following individuals:

LeRoy Hall, Compliance Review Application
(202) 720-0040; FAX:  (202) 720-9030
Email: leroy.hall@usda.gov	

Bruce Julian, Wetland Conservation Technical Matters
(202) 720-3042; FAX:  (202) 720-2143		  
Email: bruce.julian@usda.gov

Beth Schuler, Highly Erodible Land Technical Matters; Appeals; Equitable Relief
(615) 646-9741; FAX:  (615) 673-6705
Email:  beth.schuler@usda.gov 

- LeRoy Hall, Compliance Review Application
- (202) 720-0040; FAX:  (202) 720-9030
- Email: _[leroy.hall@usda.gov](mailto:mailto:leroy.hall@usda.gov)__	_
- Bruce Julian, Wetland Conservation Technical Matters
- (202) 720-3042; FAX:  (202) 720-2143
- Email: _[bruce.julian@usda.gov](mailto:bruce.julian@usda.gov)_
- Beth Schuler, Highly Erodible Land Technical Matters; Appeals; Equitable Relief
- (615) 646-9741; FAX:  (615) 673-6705
- Email:  _[beth.schuler@usda.gov](mailto:beth.schuler@usda.gov)__ _

## Questions?