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Conservation Compliance – Today!. East National Technology Support Center June 22, 2009. To access the audio portion: call 888-469-1384 and enter passcode 3507265 CCA Sign-in Sheet - ftp://ftp-fc.sc.egov.usda.gov/ENTSC/Outgoing/Documentation_Certified_Crop_Advisers_June_22_09.pdf. Outline:.

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conservation compliance today

Conservation Compliance – Today!

East National Technology Support Center

June 22, 2009

To access the audio portion: call 888-469-1384 and enter passcode 3507265

CCA Sign-in Sheet -ftp://ftp-fc.sc.egov.usda.gov/ENTSC/Outgoing/Documentation_Certified_Crop_Advisers_June_22_09.pdf

outline
Outline:
  • Overview – Elvis Graves, ENTSC, National Technology Specialist
  • HEL Compliance – Gene Hardee, ENTSC, Agronomist
  • Wetlands Compliance – Kristin Smith, ENTSC, Ecologist
  • Reviews and Appeals - Gary Rinkenberger, NHQ, Acting National HEL and Wetlands Specialist
  • Questions - Anthony Burns, ENTSC, National Technology Specialist

East National Technology Support Center

statutory authority
Statutory Authority
  • Food Security Act of 1985
  • Food, Agriculture, Conservation, and Trade Act of 1990
  • Federal Agricultural Improvement and Reform Act of 1996
  • Farm Security and Rural Investment Act of 2002
  • Food, Conservation and Energy Act of 2008

East National Technology Support Center

hel provision
HEL Provision:

Loss of certain USDA Program benefits by persons who:

  • Pre-1985 Cropland: 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

East National Technology Support Center

sodbuster provision
Sodbuster Provision

Sodbuster: Produce an annual agricultural commodity on an HEL cropland field that has been “sodbusted” from native vegetation and has erosion rates that do not meet the definition for no substantial increase in soil erosion

East National Technology Support Center

swampbuster provision
Swampbuster Provision:
  • Swampbuster: Conversion of wetlands for the purpose of making possible the production of an agricultural commodity (annually-tilled crop)

East National Technology Support Center

usda benefits affected
USDA Benefits Affected:

Commodity Programs

  • 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

East National Technology Support Center

usda benefits affected1
USDA Benefits Affected:

Conservation Programs

  • Conservation Stewardship Program (CSP)
  • Conservation Reserve Program (CRP)
  • Environmental Quality Incentives Program (EQIP)
  • Farmland & Ranchland Protection Program (FRPP).
  • Grassland Reserve Program (GRP)
  • Wetlands Reserve Program (WRP)
  • Wildlife Habitat Incentives Program (WHIP)

East National Technology Support Center

helc sodbuster erosion rules
HELC Sodbuster Erosion Rules:

When there has been an annual agricultural commodity produced on HEL land under either of the following circumstances:

Pre-1985 cropping history – HELC - water and/or gully erosion that exceeds the definition for substantial reduction (75% reduction of the potential erodibility not to exceed 2T). Part 512.10

Land that is broken out of NATIVE vegetation – Sodbusted - water and/or gully erosion that exceeds the definition for no substantial increase (T). Part 512.10

East National Technology Support Center

swampbuster conversion rules apply
Swampbuster Conversion Rules apply :

When production of an agricultural commodity occurs on a wetland converted between 12/23/85 through 11/28/90.

When making the production of an agricultural commodity possible on a wetland converted after 11/28/90.

East National Technology Support Center

hel determinations are required
HEL Determinations are Required:

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.

East National Technology Support Center

certified wetland determinations
Certified Wetland Determinations:
  • Required by USDA Program Policy (“Yes” AD-1026, boxes 9a, 9b or 10)
  • Receipt of NRCS CPA-038
  • Potential Wetland Violation is Reported (FSA-569)
  • Violation Discovered During Status Review

East National Technology Support Center

helc wc provision benefits
HELC/WC Provision Benefits:
  • Benefits may be reinstated when:
    • For Swampbuster the wetland is restored or mitigated;
    • For HELC and Sodbuster the annual commodity crop is produced using an approved conservation system that provides for the specified level of erosion control.

East National Technology Support Center

2002 farm bill changes
2002 Farm Bill Changes:

Only NRCS employees may make a determination of HELC/WC violations to FSA.

TSP’s or partner agencies will not make HELC/WC determinations.

East National Technology Support Center

2008 farm bill changes
2008 Farm Bill Changes
  • Retains Sodbuster and Swampbuster provisions
  • Determination of "good faith and without intent to violate the law" to be reviewed by USDA's State Executive Director (Farm Services Agency, FSA) with technical concurrence of State Conservationist (Natural Resources Conservation Service, NRCS) or by district director (FSA) with technical concurrence of area conservationist (NRCS). Secretary can impose penalties commensurate with seriousness of violation.

East National Technology Support Center

hel compliance
HEL Compliance

Gene Hardee, Agronomist

ENTSC, Greensboro, North Carolina

East National Technology Support Center

hel compliance1
- HEL Compliance -

Terms

HEL – Highly Erodible Land

PHEL – Potentially Highly Erodible Land

NHEL – Not Highly Erodible Land

Sodbusting – Production of an agricultural commodity on an HEL field converted from “native vegetation” after December 23, 1985

HEL Compliance “trigger” – Planting of an agricultural commodity on an HEL field

Agricultural Commodity – For Food Security Act purposes, an agricultural commodity is an annually planted crop

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East National Technology Support Center

hel compliance2
- HEL Compliance -

Assessment Tools for HEL Compliance

HEL/NHEL Determinations:

1. Sheet and Rill Erosion –> USLE Factors

USLE: A = RKLSCP

2. Wind Erosion –> WEQ Factors

WEQ: E = f(ICKLV)

Planning of Conservation Treatment Systems &

Assessment of Compliance –> the Currently Approved

Erosion Prediction Technologies

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East National Technology Support Center

hel compliance3
- HEL Compliance -

Determining the Soil Erodibility Index

Index of Potential Erosion of a soil map unit at a specific site

Erodibility Index of 8 or greater is HEL

Sheet and Rill Erosion – (EI = RKLS/T)

Wind Erosion – (IC/T)

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East National Technology Support Center

East National Technology Support Center

hel compliance4
- HEL Compliance -

HEL Soil Map Unit Lists

List soil map units with designations as

HEL, PHEL, or NHEL

Filed in Section II of the FOTG

List was frozen as of January 1, 1990

Only exception is allowances for areas not previously mapped

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East National Technology Support Center

East National Technology Support Center

hel compliance5
- HEL Compliance -

Field Determinations

Determinations are made on a field basis

Determination is made in response to answers to questions 9 or 10a-c on the AD-1026

Establishment of field boundaries and numbers in accordance with established protocols is an FSA role

If 1/3 or 50 acres is highly erodible soil map units, the field is HEL

PHEL soil map units will be verified as HEL or NHEL through on-site assessment

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East National Technology Support Center

hel compliance6
- HEL Compliance -

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East National Technology Support Center

East National Technology Support Center

hel compliance7
- HEL Compliance -

Field Determination/Redefinition

Field redefinition is an FSA role

Fields may not be combined or split to avoid a determination of HEL

Field Combinations: (HEL & NHEL)

- If 1/3 or 50 acres of new field is HEL the entire field is HEL

- If less than 1/3 or 50 acres of the new field is HEL, the field portions will continue with their previous designations as HEL or NHEL

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East National Technology Support Center

hel compliance8
- HEL Compliance -

Field Determination/Redefinition

When a NHEL field is split or NHEL fields are combined -> complete a new HEL determination.

When a previous HEL field is split -> Any field with HEL soil map units remains HEL. Fields with no HEL soil map units are NHEL.

A New CPA-026 is required for any re-determination resulting in an HEL field.

For re-determinations resulting in NHEL field(s) only make remarks on the AD-1026 that the new field is NHEL.

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East National Technology Support Center

East National Technology Support Center

hel compliance9
- HEL Compliance -

Conservation System vs. Conservation Plan

Conservation plan -> not required unless the plan is a specific requirement for approval of an exemption or variance

Substantial Reduction in Erosion -> provision for compliance on HEL cropped prior to 12/23/85

Converted from native vegetation -> substantial increase in soil loss for these fields is defined as any erosion in excess of soil loss tolerance (T) for the predominant HEL soil map unit in the field

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East National Technology Support Center

East National Technology Support Center

hel compliance10
- HEL Compliance -

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East National Technology Support Center

East National Technology Support Center

hel compliance11
- HEL Compliance -

Acceptable Conservation Systems

Applicable to first category from previous slide only:

Approval by field office if the predicted erosion is < 2T

Approval by State Conservationist if predicted erosion is between 2T and 4T

If predicted erosion is in excess of 4T the conservation system must be approved by the appropriate division director at NHQ

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East National Technology Support Center

East National Technology Support Center

hel compliance12
- HEL Compliance -

Requirements of an HEL Conservation Plan

Technical Errors

Erosion Estimates for Conservation Compliance

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East National Technology Support Center

slide29

Wetland Compliance

Kristin Smith

Ecologist (Environmental Compliance Specialist)

East NTSC

East National Technology Support Center

wetland regulations policies
Wetland Regulations/Policies
  • Federal Laws
  • State Laws
  • Agency Policies

Each has different requirements!

East National Technology Support Center

nrcs responsibilities
NRCS Responsibilities

“NRCS employees must have enough knowledge of Federal, Sate and local laws and regulations to recognize that a contemplated facility or practice may be subject to such laws and regulations.”

(GM 450 Part 405.2)

East National Technology Support Center

slide32
Laws
  • Food Security Act of 1985, as amended
    • “Swampbuster” provisions
    • Agricultural lands and activities
    • Eligibility for USDA programs
  • Clean Water Act
    • Section 404
    • All waters of the U.S.
    • Permit required for discharge of dredged or fill materials
    • 2/25/05 Joint Guidance Memo to the Field
  • State Laws and Regulations

East National Technology Support Center

nrcs policy
NRCS Policy
  • NRCS Wetland Protection Policy
    • Executive Order 11990 (1977)

“Each agency shall provide leadership and take action to prevent the destruction, loss or degradation of wetlands, and to preserve and enhance natural and beneficial values of wetlands in carrying out the agency’s responsibilities.”

    • GM Part 190 Section 410.26
      • Identify wetlands when providing assistance
      • Protect wetland functions by avoiding and minimizing impacts
    • Prohibits NRCS assistance resulting in adverse impacts to wetlands if practicable alternatives exist
    • Environmental Evaluation (CPA-52)

East National Technology Support Center

wetland conservation provisions
Wetland Conservation Provisions
  • Wetland Determinations and Labels – Part 514
  • Minimal Effect Exemptions and Good Faith Waivers – Part 515
  • Wetland Functional Assessment – Part 516

East National Technology Support Center

swampbuster
Swampbuster
  • Prohibits:
    • 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

East National Technology Support Center

swampbuster1
Swampbuster
  • Agricultural commodity
    • Annually planted crops
    • After 11/28/1990, forages also prohibited
  • Making production possible
    • Alteration of the hydrology and/or removal of woody vegetation that:
      • Allows or would allow production of an ag commodity where not previously possible
      • After 11/28/90, allows forage production or pasture and hayland use
      • Farmable more years than previously possible
      • Reduces crop stress and allows increased yield

East National Technology Support Center

wetland criteria
Wetland Criteria
  • Three factors
    • Hydric soil
    • Hydrophytic vegetation
    • Wetland hydrology
  • Must meet the definition of all three wetland factors

East National Technology Support Center

determinations
Determinations
  • Delineate
    • Outline the boundaries of a wetland determination
    • Can be on paper OR on the ground
  • Determine
    • Make a technical decision regarding whether or not an area is a wetland
  • Certify
    • Decision that a wetland determination is of sufficient quality to make a determination of ineligibility for USDA program benefits
    • All determinations made for Food Security Act purposes after July 3, 1996 considered “certified”

East National Technology Support Center

certified determinations
Certified Determinations
  • Made in response to:
    • AD-1026
    • FSA-569 or whistleblower complaint
    • Violations discovered during status reviews
    • CPA-038
  • Using
    • On-site methods
    • Off-site methods

East National Technology Support Center

labels non wetlands
Labels – Non-Wetlands
  • Non-wetlands (NW)
    • Under normal conditions do not meet wetland criteria
    • Wetlands manipulated before 12/23/85 to the extent do not meet wetland criteria AND where an agricultural commodity not produced (not a PC), if not abandoned
    • Other waters of the United States not meeting wetland criteria

East National Technology Support Center

labels wetlands
Labels - Wetlands
  • Wetlands (W)
    • Natural wetlands
    • Wetlands farmed under natural conditions
      • No removal of woody vegetation
      • No manipulation of water regimes
  • Manipulated Wetlands (WX)
      • Not for the purpose of commodity production (“intent”) AND
      • Production not made possible
  • Artificial Wetland (AW)
      • Non-wetland under natural conditions
      • Exhibits wetland characteristics due to human activity

East National Technology Support Center

areas in ag production
Areas in Ag Production
  • Prior Converted Cropland (PC)
    • Manipulated prior to 12/23/85
    • Capable of producing a commodity on 12/23/85
    • Commodity produced at least once before 12/23/85
    • Does not meet FW hydrology criteria
    • Hydrologic manipulations can be maintained or improved
  • Farmed Wetlands (FW)

Farmed Wetland Pasture (FWP)

    • Manipulated prior to 12/23/85
    • Meets appropriate FW/FWP hydrology criteria
    • Not abandoned
    • Can be maintained

East National Technology Support Center

wetland conversions
Wetland Conversions
  • Converted Wetland (CW)
    • Area that was formerly wetland
    • Manipulated and an agricultural commodity planted between 12/23/85

and 11/28/90

    • Production not possible but for manipulation action
    • Producer in violation if commodity planted or additional manipulation
    • Can maintain to scope and effect of original manipulation
  • Converted Wetland (CW+year)
    • Area that was formerly wetland
    • Manipulated after 11/28/90 for the purposes of or to have the effect of making production possible
    • Production not possible but for action
    • Producer in violation indefinitely until wetland restored or mitigated

East National Technology Support Center

exemptions
Exemptions
  • Converted Wetland Technical Error (CWTE)
    • Incorrect determination by NRCS results in noncompliance
    • Can only be approved at the State level
  • Third Party Conversion Exemption (TP)
    • USDA participant did not control action
      • Conversion by persons unassociated with the USDA program participant
      • Indirect effect of action taking place off the tract

East National Technology Support Center

exemptions1
Exemptions
  • Minimal Effect Exemption (MW)
    • Wetlands converted through an action having minimal effect on wetland functions and values
    • State-level procedures
    • Requested by the USDA participant
    • Pre- or post-conversion
    • Functional assessment required
    • Minimal effect agreement may be required if special conditions are applied
    • 404 permit may be required

East National Technology Support Center

exemptions2
Exemptions
  • COE Permit with Mitigation Exemption (CPD)
    • No Swampbuster violation if
      • Permit issued under Section 404 AND
      • Acreage and functions of the converted wetland adequately mitigated
    • No easement required

East National Technology Support Center

mitigation exemption
Mitigation Exemption
  • Mitigation (MIW and MWM)
    • Requested to restore eligibility for USDA benefits
    • Mitigate for lost acreage, value and functions:
      • Restoration of a converted or degraded wetland
      • Enhancement of a degraded wetland
      • Creation of a new wetland
      • (note: preservation not authorized)
    • On-site or off-site
    • Functional assessment required
    • Mitigation plan and/or agreement required - implemented in advance
    • Easement usually required
    • Should be in same 8-digit HUC
    • Cannot be funded by the Federal government
    • Approved mitigation banks can be used

East National Technology Support Center

good faith waiver
Good Faith Waiver
  • Good Faith Waivers (Made by FSA)
    • USDA participant acted in good faith without intent to violate Swampbuster provisions
    • FSA determines acted in good faith
      • With information and technical concurrence from NRCS
    • NRCS approves plan or agreement for restoration or mitigation
    • Eligibility regained by implementing plan or agreement within 1 year
      • NRCS monitors implementation
    • Revert to previous wetland label if restored or MIW if mitigated

East National Technology Support Center

out dated labels
“Out-Dated” Labels
  • Labels from previous editions of the FSA Manual
    • Commenced Conversion (CC)
    • Converted Wetland for Non-Agricultural Purposes (CWNA)
    • Not Inventoried (NI)
  • See 514.50 and 514.60 in NFSAM for more info

East National Technology Support Center

scope and effect
Scope and Effect
  • Refers to documentation of
    • Wetland hydrologic conditions and manipulation that occurred before 12/23/85 or
    • Planned hydrologic manipulations on previously manipulated wetlands
  • Used to determine if an action is maintenance or improvement
  • Completed when:
    • Conducting an initial determination for FW and FWP
    • Evaluating an FSA-569 regarding post-1985 manipulation
    • Requested by a USDA participant
  • Follow guidance in 516.10 of FSA Manual
  • Document in the administrative record/case file

East National Technology Support Center

functional assessments
Functional Assessments
  • Quantify wetland functions for minimal effect determinations and mitigations
    • Provide for valid assessment of impacts to wetland functions
    • Procedures adopted by State Conservationist
      • HGM functional assessment procedure for geographic region encouraged
      • NRCS may adopt localized procedures
      • Development of reference standards

East National Technology Support Center

reviews and appeals
Reviews and Appeals

2009 Compliance Reviews

Quality Assurance

Processing FSA-569s

Appeal Procedure

Gary Rinkenberger

Acting, HEL and Wetland Specialist

East National Technology Support Center

slide54
2009 Compliance Reviews

Integrated Accounting System (IAS)

East National Technology Support Center

2009 compliance reviews
2009 Compliance Reviews
  • Before starting 2009 Compliance Reviews, read
    • 518.10 Conducting Compliance Reviews
    • 518.11 Determining Compliance with HELWC Provisions
    • 518.12 HELWC Compliance Violation Determinations

East National Technology Support Center

slide56
Office Preparation

East National Technology Support Center

locate your tracts in the web based application
Locate Your Tracts in the Web-based Application
  • Go to My.NRCS
  • Field Tools
  • FSA Compliance Reviews
  • Data Entry
  • Select your State
  • Select your County
  • Select All Types
  • Select Search NFSAM 518.10

East National Technology Support Center

types of tracts
Types of Tracts
  • R- Random assigned by NHQ
  • V- 2008 Variance or exemption by assigned NHQ
  • U-USDA employee (NRCS, FSA, FSA COC)
  • A- Added by another agency or potential violation
  • W- Wetland tract
  • M- Replacement tract automatically assigned for invalid or not found tracts

NFSAM 518.02

East National Technology Support Center

tract validation
Tract Validation
  • Reconcile tracts with local FSA Office because tract nos. and owner/operators change
  • Obtain original HELWC determinations before going to the field
  • If neither HEL or wetlands are present on the tract, then it is an invalid tract. The replacement tract must have either HEL or wetland. Both HEL and wetland are preferred. It will be assigned “M” as a replacement tract.

NFSAM 518.10

East National Technology Support Center

notify the participant
Notify the Participant
  • Written notifications are to be sent to the USDA participant within 15 to 30 days prior to the compliance review
  • Explain the purpose, date, time, and invite the owner/operator to participate in the review.

NFSAM 518.01 c

East National Technology Support Center

slide61
Field Review

East National Technology Support Center

field review resources
Field Review Resources

Compliance Plan or Conservation System

Soil maps

Print compliance slides for land use & crop history

HEL and WC Inventory Maps

Original SCS-CPA-026 or NRCS-CPA-026

Original aerial photos with HELWC labels

Topographic Map NFSAM 518.10 b

East National Technology Support Center

hel compliance review
HEL Compliance Review
  • Review the entire tract
  • Record the rotation, tillage system, residue levels, installed practices and operation & maintenance in the assistance notes
  • Check for Sodbusted land
  • Check for ephemeral gullies

NFSAM 518.10

East National Technology Support Center

wetland compliance review
Wetland Compliance Review
  • Review the entire tract
  • Verify existing wetlands with original wetland determination labels and delineations.
  • Document confirmation of wetlands or record observed changes that may be potential wetland violations on aerial photos and assistance notes

NFSAM 518.10

East National Technology Support Center

authorized activities for wetland compliance
Authorized Activities for Wetland Compliance
  • The NFSAM Part 514.60 summarizes 19 different wetland types, labels, criteria, authorized uses and maintenance activities for compliance with the WC provisions.
  • Recommend that the NRCS reviewer photocopy the matrix and carry it in the field for wetland reference

NFSAM 514.60

East National Technology Support Center

slide66
Determine HELWC Compliance

East National Technology Support Center

cropland hel compliance determination
Cropland HEL Compliance Determination
  • Compare existing practices with NRCS standards
  • Calculate soil loss using current version of RUSLE or WEQ NFSAM 512.03
  • Determine soil loss compliance using NFSAM 512.01. Conservation systems not included a Conservation Plan are to have soil erosion calculations placed in the case file

NFSAM 518.12

East National Technology Support Center

cropland hel compliance determination con t
Cropland HEL Compliance Determination Con’t
  • Use Determination Codes as defined in Part 518.11 to document compliance or non-compliance (AA, AC, NN etc.)
  • Complete web-based application
  • Request a FSA-569 if there is a violation
  • Place hard copy of web page in case file with documentation NFSAM 518.12

East National Technology Support Center

sodbuster compliance review
Sodbuster Compliance Review
  • Criteria for Sodbuster
    • Must be HEL
    • No cropping history prior to 12/23/1985
    • Native vegetation
  • Determine date of conversion
  • Calculate soil erosion value (T or below)
  • Request FSA-569 if there is a violation

NFSAM 518.10

East National Technology Support Center

wetland compliance determination
Wetland Compliance Determination
  • Record any changes that are observed in the web page comments box.
  • Identify any potential violations.
  • Complete web-based application
  • Request FSA-569 if there is a PV
  • Place hard copy of web page in case file with documentation

NFSAM 518.11

East National Technology Support Center

compliance review deadline
Compliance Review Deadline
  • November 15th is the final date to have compliance reviews completed

NFSAM 518.01 d

East National Technology Support Center

slide72
Processing FSA-569s

East National Technology Support Center

how does a fsa 569 get started
How does a FSA-569 get started?
  • FSA-569 will be issued because of a report of a potential violation from
    • NRCS Compliance review or technical assistance
    • FSA FSA COC suspected violation
    • Whistle Blower Anonymous notification

NFSAM 520.04

East National Technology Support Center

slide74
Compliance Review

& FSA-569

East National Technology Support Center

compliance reviews fsa 569
Compliance Reviews & FSA-569
  • Compliance Reviews are either in compliance or in non-compliance. There is not opportunity to remedy.
  • Reasons to request FSA-569
    • Not actively applying a conservation plan or system
    • Not using an approved system in the FOTG
    • Denying access to the tract
    • Violation to wetland provisions

NFSAM 518.12

East National Technology Support Center

notification timeline
Notification Timeline
  • NRCS is notify the person in writing within 10 days following the determination of the potential violation
  • NRCS is to request a FSA-569 from the FSA county office within 7 days of the determination.

NFSAM 518.12

East National Technology Support Center

notification of non compliance preliminary technical determination
Notification of Non-Compliance – Preliminary Technical Determination
  • NRCS provides the Preliminary Technical Determination (PTD)
    • NRCS-CPA-026E
    • Letter with appeal rights
    • Aerial photo with HELWC labels
  • Hold the FSA-569 until the PTD is a Final Technical Determination (FTD).

NFSAM 518.12

East National Technology Support Center

follow up to non compliance final technical determination
Follow up to Non-Compliance - Final Technical Determination
  • After the FTD is signed by the STC, then NRCS completes Block 10 (date) and Part C (type and extent of violation) in the FSA-569
  • Return FSA-569 to FSA county office
  • If FSA receives a request for Good Faith, FSA will issue AD-1068 for HEL violations or AD-1069 for Wetland violations. NRCS completes appropriate forms and participates in the FSA COC review. NFSAM 520.12

East National Technology Support Center

slide79
Technical Assistance

and FSA-569

East National Technology Support Center

technical assistance procedure for hel
Technical Assistance Procedure for HEL
  • If NRCS discovers a HEL violation while providing technical assistance, and the participant agrees to rectify the violation, then the 45 day, one year rule applies.
  • If the plan is agreed to within 45 days and implemented within one year, then NRCS does not request a FSA-569. If these milestones are not met, then NRCS requests a FSA-569.

NFSAM 520.11

East National Technology Support Center

technical assistance procedure for wetlands
Technical Assistance Procedure for Wetlands
  • If NRCS discovers a violation to the wetland provisions while providing technical assistance, then NRCS is to request a FSA-569 and provide a PTD with appeal rights.
  • Mitigation can be started after PTD is completed.
  • Hold the FSA-569 until the STC issues the FTD NFSAM 520.05

East National Technology Support Center

slide82
Whistleblower and FSA requested investigations

East National Technology Support Center

fsa requests
FSA Requests
  • If FSA receives a report from an anonymous source (Whistleblower) or FSA COC suspects non-compliance from a participant, FSA can refer a FSA-569 to NRCS
  • NRCS responds to the request by notifying the participant within 10 days using a PTD CPM 510

East National Technology Support Center

on site investigation
On-site investigation
  • NRCS always does an on-site investigation for a FSA-569

NFSAM 514.1

East National Technology Support Center

slide85
HELWC Quality Assurance

East National Technology Support Center

quality assurance
Quality Assurance
  • STC is to establish a quality control procedure consistent with the NFSAM
  • The purpose is to ensure that NRCS properly carries out responsibilities for the HELWC provisions
  • Compliance Reviews are inspection of the participant
  • Quality Assurance Reviews are an inspection of NRCS NFSAM 519.01

East National Technology Support Center

slide87
Appeals

East National Technology Support Center

two types of appeals
Two Types of Appeals
  • There are two paths for appeal:
    • Program Decisions, and
    • Technical Determinations
  • HELWC are Technical Determinations
  • Appeal Process is found in CPM 510

7CFR 614.7- 614.9

East National Technology Support Center

required documents
Required Documents
  • A valid AD-1026 must be on file for NRCS to make a HELWC determination, provide appeal rights, or respond to FSA-569.
  • AD-1026 Participant answers “Yes” to questions 9 (HEL) or 10a-c (WC), then NRCS has 15 working days to complete off-site PTD or 60 working days for on-site PTD NFSAM 510.12
  • FSA-569 If FSA provides a referral to NRCS, the Field Office has 30 days to complete the PTD on-site

NFSAM 520.05

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ptd minimum content
PTD Minimum Content
  • NRCS PDT content:
    • NRCS-CPA-026E
    • Electronic or paper aerial photo with PTD labels (HEL, NHE, W, PC, etc.)
    • Letter of explanation with appeal rights
    • Appeal rights : reconsideration, mediation & waiver
    • If a certified wetland, a statement that explains 1) the determination is for purpose of implementing wetland provisions of the FSA of 1985 & 2) may not be valid for the requirements of the CWA NFSAM 514.1 G, 7CFR 614.7 & CPM 510.1

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agency record
Agency Record
  • Agency Record begins when the participant submits a written request for an appeal.
  • Agency Record contains the adverse determination, Statute, Regulations, NFSAM procedure, data forms, correspondence, calculations, NRCS-CPA-026, pictures and any other documents that clearly tells the story of how, when, why, what and where. CPM 510.3

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nrcs response to reconsideration request
NRCS Response to Reconsideration Request
  • If the participant requests Reconsideration.
  • NRCS has 15 calendar days following the required NRCS on-site visit to provide the STC the results of reviewed determination
  • The STC issues the FTD to the participant as soon as practical with appeal rights to FSA COC and NAD 7CFR 614.7

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nrcs response to mediation request
NRCS Response to Mediation Request
  • If the participant requests Mediation.
  • Appeal Clock stops. NRCS provides a mediator through the state’s USDA Certified Program or a non-certified mediation provider.
  • NRCS and participant mediate in good faith.
  • Appeal Clock starts after mediation is completed

CPM 510.5

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nrcs response to mediation request con t
NRCS Response to Mediation Request Con’t
  • Mediation with Agreement – NRCS will make the FTD consistent with the agreement.
  • Mediation without Agreement – Appeal Clock resumes with PTD remaining time and appeal rights. When the determination is FTD, the participant can appeal to FSA COC or NAD

7CFR 614.8 & 11

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nrcs response to waiver request
NRCS Response to Waiver Request
  • Participant can waive PTD appeal rights and request a FTD. The FTD appeal rights remain in effect.
  • All requests for waivers must be in writing to the NRCS STC

7CFR 614.7 &CPM 510.1

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appeal to fsa or nad
Appeal to FSA or NAD
  • After the determination is final (FTD) the participant can appeal to FSA COC or NAD

7CFR 614.7 &CPM 510.6

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appeal to fsa coc
Appeal To FSA COC
  • The FSA COC determines merit or lack of merit based on a review of the facts and interview with NRCS and the participant
  • If merit is determined, then the FSA SED will request the NRCS STC to reconsider the appeal
  • NRCS STC has 30 days to reconsider the case and report back to the FSA SED
  • If FSA COC determines lack of merit, then the participant may appeal to the FSA State Committee (FSA STC) CPM 510.6

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appeal to the fsa stc
Appeal to the FSA STC
  • FSA STC determines merit or lack of merit.
  • If FSA STC finds merit, then FSA STC will request NRCS STC to review the appeal
  • If the FSA STC does not find merit, FSA will provide appeal rights to NAD

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nad appeals
NAD Appeals
  • The determination must be a FTD
  • NRCS provides the Agency Record to the hearing officer and appellant prior to the NAD Pre-hearing teleconference.
  • During the Pre-hearing the adverse determination is clearly identified and the date and location established for the NAD hearing CPM 510.7

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nad hearing
NAD Hearing
  • The formal NAD hearing may be conducted
    • In person
    • By teleconference
    • By the NAD hearing officer’s review of the Agency record and any materials submitted by the participant

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nad hearing1
NAD Hearing
  • The Appellant has the responsibility to demonstrate agency error in its FTD, including whether NRCS followed the applicable regulations when the determination was made.
  • NRCS is to explain the FTD using Statute, Regulations, Policy and Procedure as well case file documents including aerial photos, pictures of the site, COE Wetland Data Sheets, Assistance Notes, etc

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nad director review
NAD Director Review
  • Either party to the appeal may request a review of the NAD hearing officer’s decision by the Director of NAD.
  • Participant cannot seek judicial relief until all remedies offered by NAD are exhausted. CPM 510.9

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information
Information
  • Download presentation and access replay:

http://www.nrcs.usda.gov/about/ntsc/east/workshops.html

  • Obtain CCA sign-in sheet:ftp://ftp-fc.sc.egov.usda.gov/ENTSC/Outgoing/Documentation_Certified_Crop_Advisers_June_22_09.pdf

or emailkristin.smith@gnb.usda.gov

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Questions?

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