Beth Schuler, National HELC Specialistand

Floyd WoodWetlands Conservation Program Leader

United States Department of Agriculture

Natural Resources Conservation Service

Highly Erodible Land Conservation Compliance

Wetland Conservation Provisions“Swampbuster”

and

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

Slide 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.

Slide 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.

Slide 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

Slide 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.

Slide 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).

Slide 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)

Slide 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.”

Slide 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.”

Slide 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)

Slide 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

Slide 13

NRCS Policy and Procedures

National Food Security Act Manual (180-V-NFSAM, Third Edition, November 1996

And Fourth Edition, March 2003Delineating, Documenting, and Planning

HELC/SodbusterParts 511-512; 520

Delineating, Documenting, and Certifying WetlandsParts 513-517

Common Provisions Parts 510, 518, 519, 522-527

Slide 14

NFSAM on the WEBhttp://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

Slide 15

NFSAM on the WEBFuture 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

Slide 16

NFSAM, Part 518

Slide 17

When Does 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.

Slide 18

When Does 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

Slide 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

Slide 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

Slide 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

Slide 22

Compliance Review Procedures

Slide 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.

Slide 24

Clarified Use of Variances

NFSAM NFSAM Part Part 518.11(f518.11(f))

Slide 25

Variances and ExemptionsVariances 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.

Slide 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.

Slide 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.

Slide 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

Slide 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

Slide 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.)

Slide 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

Slide 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.

Slide 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.

Slide 34

GAO Audit ResultsSome 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.

Slide 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.

Slide 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.

Slide 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.

Slide 38

• 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.

OIG Audit Results

Slide 39

ConclusionFor questions, assistance, training, etc. regarding the

HELCWC compliance provisions, please call:Beth Schuler(615) 646-9741; FAX: (615) 673-6705Email: beth.schuler@usda.gov

orFloyd Wood(202) 690-1588; FAX: (202) 720-2143 floyd.wood@usda.gov