HEL Conservation Compliance Beth A Schuler National Highly Erodible Land Specialist, Conservation Operations Division

HELC/WC – General Information Status of the Final Rule – being promulgated Status of the Final Rule – being promulgated Recent Activities Recent Activities GAO Audit Results GAO Audit Results OIG Audit Results OIG Audit Results Violation Determinations – Who can make them? Violation Determinations – Who can make them? Agency Policy – NFSAM now on the Web!! Agency Policy – NFSAM now on the Web!! Compliance Review Procedures Compliance Review Procedures Equitable Relief – not applicable to HELC/WC Equitable Relief – not applicable to HELC/WC

Status of the Final Rule The HELC/WC rule, 7 CFR Part 12 is currently undergoing agency and OGC review. The HELC/WC rule, 7 CFR Part 12 is currently undergoing agency and OGC review. Several changes, mostly to the wetland conservation provisions. Several changes, mostly to the wetland conservation provisions. Some clarifications to the current definitions. Some clarifications to the current definitions. Two statutory changes to who can make a violation determination. Two statutory changes to who can make a violation determination.

GAO Audit Results The audit was conducted during The audit was conducted during Requested by IA Senator Harkin as a result of complaints received from several entities about USDA implementation problems Requested by IA Senator Harkin as a result of complaints received from several entities about USDA implementation problems Conducted nationwide through a web- based survey; “live” in 5 States. Conducted nationwide through a web- based survey; “live” in 5 States. Audit results are not finalized as yet. Audit results are not finalized as yet.

OIG Audit Audit conducted in 1 State, multiple counties during 2001 Audit conducted in 1 State, multiple counties during 2001 Resulted from a Whistleblower Complaint regarding the apparent differences found between areas in USDA implementation of the provisions Resulted from a Whistleblower Complaint regarding the apparent differences found between areas in USDA implementation of the provisions State-level data expanded to reflect National levels. State-level data expanded to reflect National levels.

GAO Audit Results Some of the findings included: An unwillingness of the agency to find USDA participants in violation of the provisions. 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. Compliance status reviews not being completed correctly or at the appropriate time. Good Faith being given inappropriately in some cases. Good Faith being given inappropriately in some cases. NFSAM unclear or conflicting on many procedures. NFSAM unclear or conflicting on many procedures. Employees (NRCS) do not possess the skills necessary to implement the HELC/WC provisions. Employees (NRCS) do not possess the skills necessary to implement the HELC/WC provisions.

OIG Audit Results Current NRCS Status Review Process flawed. Current NRCS Status Review Process flawed. NRCS has agreed to revise the process (currently using Access97 database procedure) and make the process a web-based procedure. Conflicting policy between NRCS and FSA. Conflicting policy between NRCS and FSA. The agency agreed to work closely with FSA in ensuring that agency policy documents (NFSAM and 6-CP) are in agreement.

OIG Audit Results Employees inappropriately granting variances, good faith exemptions, and use of mediation. Employees inappropriately granting variances, good faith exemptions, and use of mediation. The agency has agreed to provide training to the States on implementation of the HELC/WC provisions. Also, NRCS has agreed to provide training on the proper use of variances, exemptions, and mediation.

NFSAM has conflicting information; out of date information; and is not available on- line. NFSAM has conflicting information; out of date information; and is not available on- line. NRCS has agreed to revise the NFSAM to address conflicting policies, update inaccurate policy, and make the NFSAM available on-line by August OIG Audit Results

2002 Farm Bill Changes 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), Conservation Compliance amended Section 1211 of the Food Security Act of 1985 by adding Section 1211(b): “Highly Erodible Land.—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.”

2002 Farm Bill Changes The Farm Security and Rural Investment Act of 2002, Section 2002(b), Conservation Compliance amended Section 1221 of the Food Security Act of 1985 by adding Section 1221(e): “Wetland.—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.”

Agency Policy NFSAM is on the WEB! NFSAM is on the WEB! Part 518, Compliance Status Reviews is now available on the NRCS Policy Website: /M/M_180.htm

NFSAM, Part 518

Replacing Random Tract Randomly selected tracts must be replaced in accordance with the proposed GAO audit in order to ensure that the compliance status review tract database is statistically sound in predicting the status of compliance across the Nation. See NFSAM, Part (c) for policy on this activity.

Compliance Review Procedures

NFSAM, Part 518, Compliance Status Reviews NFSAM, Part 518, Compliance Status Reviews GM-340, Part 413 – General Policy regarding all NRCS reviews (being developed) GM-340, Part 413 – General Policy regarding all NRCS reviews (being developed) National Handbook for Evaluations, Assessments, Investigations, and Reviews (being developed) National Handbook for Evaluations, Assessments, Investigations, and Reviews (being developed)

Clarified Use of Variances NFSAM Part (f)

Variances and Exemptions Variances are issued by NRCS during the course of a compliance status review. Authorized variances are as follows: AC – Special Condition Variance – allowable only when there are special conditions that prohibited application of the conservation system due to severe weather, crop pest infestations, or crop diseases. AC – Special Condition Variance – allowable only when there are special conditions that prohibited application of the conservation system due to severe weather, crop pest infestations, or crop diseases.

Variances and Exemptions AH – Special Problem Variance – allowable only when there are special problems such as: AH – Special Problem Variance – allowable only when there are special problems such as: Severe physical condition or death of primary farm operator. Severe physical condition or death of primary farm operator. Destruction of holdings, equipment, by natural disaster, fire, or similar occurrence. Destruction of holdings, equipment, by natural disaster, fire, or similar occurrence. NRCS Error that the USDA participant relied upon in applying the conservation system. NRCS Error that the USDA participant relied upon in applying the conservation system.

Variances and Exemptions AM – Minor Technical Failure – may only be used when there is a failure to completely apply a conservation system that meets the soil loss reduction requirements. May NOT be used for NRCS error. AM – Minor Technical Failure – may only be used when there is a failure to completely apply a conservation system that meets the soil loss reduction requirements. May NOT be used for NRCS error.

Variances and Exemptions CA – Conditionally Applying – May ONLY be used when compliance cannot be determined at the time of the review due one or more major practice needed to be installed. This should not be used on any except the following cases: CA – Conditionally Applying – May ONLY be used when compliance cannot be determined at the time of the review due one or more major practice needed to be installed. This should not be used on any except the following cases: Tract coming out of CRP Tract coming out of CRP New land entered into USDA Benefit programs New land entered into USDA Benefit programs

Variances and Exemptions Exemptions are issued by FSA, either the COC or the State Committee. The 2 exemptions that are authorized are: Economic Hardship Economic Hardship Good Faith Good Faith NRCS must be consulted prior to the FSA COC issuing a Good Faith Exemption for either HELC or WC violation

Equitable Relief The Equitable Relief provisions outlined in the 2002 Farm Bill, Section 1613 DO NOT apply to violations of HELC or WC. Therefore, NRCS will NOT accept or grant any requests for Equitable Relief from a violation of these provisions. The Equitable Relief provisions outlined in the 2002 Farm Bill, Section 1613 DO NOT apply to violations of HELC or WC. Therefore, NRCS will NOT accept or grant any requests for Equitable Relief from a violation of these provisions.

Conclusion For questions, assistance, training, etc. regarding the HELC compliance provisions, please call: (615) ; FAX: (615) This presentation will be available at the following URL: training_ ppt