Beth Schuler, National HELC Specialist 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 Review Audit Recommendations Discuss Statutory Requirements Discuss Statutory Requirements Discuss GM 340, Part 413 and NHEAIR Discuss GM 340, Part 413 and NHEAIR Compliance Review Procedures and Problems Compliance Review Procedures and Problems Questions and Answers Questions and Answers Additional Training Needs Additional Training Needs

Audit Results

OIG Audit KC, September 2002, OIG Audit KC, September 2002, Natural Resources Conservation Service Compliance With Highly Erodible Land Provisions GAO Audit GAO , April GAO Audit GAO , 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. 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. 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. FSA is granting Good inappropriately and without adequate documentation. NRCS employees inappropriately granting variances. NRCS employees inappropriately granting variances.

Results NFSAM unclear or conflicting within the parts on many procedures. NFSAM unclear or conflicting within the parts on many procedures. NFSAM has out of date information and is not available on-line. NFSAM has out of date information and is not available on-line. Conflicting policy between NRCS’s NFSAM and FSA’s 6-CP. 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. 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. Conflicting policies both within the NFSAM and between the NFSAM and 6-CP. Update inaccurate policy. Update inaccurate policy. Make the NFSAM available on-line. 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 Security Act of 1985 The Food, Agriculture, Conservation, and Trade Act of 1990 The Food, Agriculture, Conservation, and Trade Act of 1990 The Federal Agricultural Improvement and Reform Act of 1996 The Federal Agricultural Improvement and Reform Act of 1996 The Farm Security and Rural Investment Act of 2002 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. 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. 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 land is highly erodible or a wetland type or a converted wetland Whether HEL is predominant on a field Whether HEL is predominant on a field Whether a conservation plan or conservation system is based on the local FOTG Whether a conservation plan or conservation system is based on the local FOTG Whether the conservation system meets the soil protection requirements 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 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 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 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 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 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 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 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 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) A USDA participant may self-certify compliance with the provisions (b) Certifications of compliance must be made available to other agencies (c) Self-certifications do not relieve the participant of the responsibility for compliance with the provisions

Highly Erodible Land Responsibilities Develop and maintain HEL legends Develop and maintain HEL legends Make soil surveys for the purpose of identifying all HEL cropland Make soil surveys for the purpose of identifying all HEL cropland Provide technical guidance to conservation districts on conservation plans and systems 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 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: 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 Substantial reduction in soil loss – non sodbuster fields No substantial increase in soil loss – sodbuster fields No substantial increase in soil loss – sodbuster fields

Wetland Conservation Identify and maintain a county hydric soils legend Identify and maintain a county hydric soils legend Coordinate with the Fish and Wildlife Service regarding wetland plants 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 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 Investigate complaints and make technical determinations regarding potential violations Develop a process to coordinate with the FWS at the local and State levels Develop a process to coordinate with the FWS at the local and State levels

Policy

Agency Policy NFSAM is on the WEB! The 4 th Edition of the NFSAM contains the following Parts: NFSAM is on the WEB! The 4 th Edition of the NFSAM contains the following Parts: 510 General Information 510 General Information 511 Highly Erodible Land Determinations 511 Highly Erodible Land Determinations 512 Conservation Systems and Plans 512 Conservation Systems and Plans 518 Compliance Status Reviews 518 Compliance Status Reviews 519 Quality Assurance 519 Quality Assurance 520 Technical Assistance, Exemptions, Variances, and Investigations 520 Technical Assistance, Exemptions, Variances, and InvestigationsURL:

NFSAM Team In order to complete the remaining sections (wetland) of the NFSAM, a team will be formed. 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 The wetland sections, Parts 513, 514, 515, 516, and 517 will be completed by no later than December Other parts, such as exhibits and appendices will also be completed by the team 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 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. 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. 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. 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. 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. 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. 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 Watershed Protection and Flood Prevention Act Dairy Marketing Assistance Program Dairy Marketing Assistance Program Agricultural Market Transition Act (AMTA) Production Flexibility Contract Payments. Agricultural Market Transition Act (AMTA) Production Flexibility Contract Payments. Farm Operating Loans issued under the Consolidated Farm and rural Development Act. 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). Farm storage facility loans (not subject to WC or Swampbuster). Disaster payments (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). Agricultural Credit Act of 1976 payments (not subject to WC or Swampbuster).

USDA Benefits Affected $ 18 Billion Conservation Programs Agricultural Management Assistance (AMA) Agricultural Management Assistance (AMA) Conservation Security Program (CSP) Conservation Security Program (CSP) Conservation Reserve Program (CRP) Conservation Reserve Program (CRP) Environmental Quality Incentives Program (EQIP) Environmental Quality Incentives Program (EQIP) Farmland Protection Program (FPP). Farmland Protection Program (FPP). Grassland Reserve Program (GRP) Grassland Reserve Program (GRP) Wetlands Reserve Program (WRP) Wetlands Reserve Program (WRP) Wildlife Habitat Incentives Program (WHIP) 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. 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) 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. 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 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 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: Randomly selected tracts must be replaced if the tract is not: Subject to the HELC/WC requirements Subject to the HELC/WC requirements Does not have a potential for wetlands 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) ; FAX: (615)

Contacts Lee Davis, Acting National Wetland Manager Phone: ( 936) FAX: ( 936)

Question and Answer Session

Contacts LeRoy Hall, Compliance Review Manager Phone: (202) FAX: (202)