Highly Erodible Land Conservation Compliance

1. United States Department of Agriculture Natural Resources Conservation Service Highly Erodible Land Conservation Compliance and Beth Schuler, National HELC Specialist and Floyd WoodWetlands Conservation Program Leader Wetland Conservation Provisions“Swampbuster”

2. Statutory Authorization 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

3. 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.

4. 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.

5. HELC,“Sodbuster” and “Swampbuster” Provisions • Benefits may be reinstated when: • the wetland is restored or mitigated; • the annual commodity crop is produced using an approved conservation system that provides for the specified level of erosion control. • No Civil or Criminal Penalties as in CWA

6. USDA Benefits AffectedBoth 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.

7. USDA Benefits AffectedHELC/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).

8. 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)

9. 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.”

10. 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.”

11. “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)

12. “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

13. NRCS Policy and Procedures National Food Security Act Manual (180-V-NFSAM, Third Edition, November 1996 And Fourth Edition, March 2003 Delineating, Documenting, and Planning HELC/Sodbuster Parts 511-512; 520 Delineating, Documenting, and Certifying Wetlands Parts 513-517 Common Provisions Parts 510, 518, 519, 522-527

14. NFSAM on the WEB http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_180.htm NFSAM, 4th Edition,March 2003 Parts Currently Available: Part 518, Compliance Status Reviews Parts to be Available Soon: Parts 510, 511, 512, 518, 519, 520

15. NFSAM on the WEB Future Parts: Parts 513, 514, 515, 516, 517, 522-527 Parts to be Discontinued: Part 521 – Appeals and Mediation All Appeals shall use the policy and guidance provided in the Conservation Programs Manual (CPM), Part 510

16. NFSAM, Part 518

17. WhenDoes NRCS Make HEL Determinations? • When an AD-1026 is received providing a determination does not already exist. (All HELC/WC determinations go with the land, not the landowner). • If tract or field redefinitions meet the requirements of the NFSAM, Part 511.22.

18. WhenDoes NRCS Conduct Certified Wetland Determinations? • Receipt of NRCS CPA-038 • Required by USDA Program Policy (AD-1026) • Potential Wetland Violation is Reported • Violation Discovered During Status Review

19. Who Can Conduct Certified Wetland Determinations? How Are They Conducted? • NRCS employees who have successfully completed training in Reg. IV and NFSAM. • In consultation with MOA Partners • All determinations are Certified and must be conducted and/or verified “on-site. • Determinations on agricultural lands are valid for CWA purposes for 5 years

20. Additional Swampbuster Facts to Remember • No significant changes in 2002 Farm Bill • Wetlands may be farmed under “natural conditions” using normal farming operations, as long as woody vegetation is not removed • Wetland determinations are completed “on-site” • Wetland determination may be appealed to the National Appeals Division • U.S. Supreme Court ruling on isolated wetlands does not apply to Swampbuster

21. Compliance Review Procedures NFSAM 4th Edition, March 2003, Part 518, Compliance Status Reviews http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_180.htm

22. Compliance Review Procedures

23. Replacing Random Tracts 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 518.03(c) for policy on this activity.

24. Clarified Use of Variances NFSAM Part 518.11(f)

25. 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.

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

27. 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.

28. 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: • Tract coming out of CRP • New land entered into USDA Benefit programs

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

30. Swampbuster Exemptions • Corps Permit Decisions • Prior Converted Croplands • Minimal Effects • Mitigation Exemption • Non-agricultural production (roads, barns, ponds, irrigation travel systems, tree farms, animal waste storage facilities, vineyards, orchards, fish production, cranberries, etc.)

31. Swampbuster – Scope and Effect • Maintain Drainage you had, as of 12/23/85 • Maintain agricultural “production” present as of 12/23/85 • Adjust maintenance needs to compensate for hydrologic changes in watershed • Also applies to Farmed Wetland Pastures

32. 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.

33. GAO Audit Results • The audit was conducted during 2002. • 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. • Audit results are not finalized as yet.

34. GAO Audit Results Some of the findings included: • 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. • Good Faith being given inappropriately in some cases. • NFSAM unclear or conflicting on many procedures. • Employees (NRCS) do not possess the skills necessary to implement the HELC/WC provisions.

35. OIG Audit • 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 • State-level data expanded to reflect National levels.

36. OIG Audit Results • 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. The agency agreed to work closely with FSA in ensuring that agency policy documents (NFSAM and 6-CP) are in agreement.

37. OIG Audit Results • 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.

38. OIG Audit Results • 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 2003.

39. Conclusion For questions, assistance, training, etc. regarding the HELCWC compliance provisions, please call: Beth Schuler (615) 646-9741; FAX: (615) 673-6705 Email: beth.schuler@usda.gov or Floyd Wood (202) 690-1588; FAX: (202) 720-2143 floyd.wood@usda.gov