Part 510 Appeals and Mediation

Subpart D - Mediation

510.30 General Information

(a) General Information

This part provides guidelines regarding mediation of adverse program technical decisions or technical determinations.

This subpart is applicable to both Title XII and non-Title XII conservation programs.

(b) Mediation Explained

Mediation is a process in which a trained, impartial person helps people to:

• Look at their mutual problems.
• Identify and consider all available options.
• Determine if an agreement or solution can be developed that is within statutory and regulatory provisions.

(c) Mediation Goals

The goal of mediation is to:

• Provide a means for parties in dispute to exchange information.
• Explore options in a nonbinding setting.

Both the Agency and the participant may be able to avoid the cost and time associated with administrative appeals.

(d) Contribution to Positive Relations

Mediation may contribute to improved program management and more positive Agency relations with participants by improving communications.

Even if the issue is eventually appealed, mediation may lead to a better definition of the issues, and eventual resolution.

(e) Mediation Process, Explained

The mediation process is a step-by-step determination that usually involves the following five steps:

(f) Confidentiality

Mediation is a confidential process. There are no formal witnesses and the mediation resolution agreement may not be disclosed by any of the parties to mediation.

(g) When Mediation is Used

Mediation can be useful when:

• There are multiple issues to be resolved.
• There is no need to establish a precedent.
• There is no single "right" solution required.
• Communication between the parties has broken down.
• Time is a major factor.
• The failure to agree does not benefit one or more parties.
• The issues are complex, and individual parties have an interest in maintaining confidentiality.
• Both parties want or need to maintain a relationship.

(h) Situations When Mediation May Not Be Appropriate

Mediation may not be appropriate when:

• There is a need to focus public attention or set a precedent.
• There is a need for a formal opinion.
• When the participant wants to utilize the formal appeals process.

510.31 Mediation Availability

(a) Rights to Mediation

Mediation will be offered as an option in cases involving technical determinations or technical decisions. The program participant will be informed of his or her rights to mediation when the Preliminary or Final Technical Determination or Final Technical Decision has been made.

Note: FSA will only offer mediation after the FSA county committee renders a decision on appeals for Title XII conservation program technical determinations.

(b) USDA Certified State Mediation Program

The Secretary has delegated authority to the Administrator of FSA to administer grants in support of the USDA Certified State Mediation Program and to certify State mediation programs to establish their eligibility for such grants. (See Farm Service Agency Handbook 1-APP, Part 6 for the FSA Mediation policy and guidelines. Subpart G, Section 510.73, Exhibit 13 provides the States with certified mediation programs.)

FSA is responsible for developing and coordinating the administration, funding, and operation of the Certified State mediation program in cooperation with other USDA agencies and State mediation programs.

State Conservationists should work with the FSA State Executive Director in developing a memorandum of understanding to obtain mediation services. (See FSA Handbook 1-APP, Part 6, Paragraph 99.) The agreement should include a provision for payment.

(c) Non-Certified States

For States without USDA certified mediation programs, the State Conservationist shall maintain a list of mediators from which a participant may make a selection.

A possible source of mediators is through the American Arbitration Association (AAA). For information concerning activities and services offered by the AAA Federal Center for Dispute Resolution contact:

P. Jean Baker, Esq.

Vice-President for Government Programs

American Arbitration Association

1150 Connecticut Avenue, NW

Floor 6

Washington, D.C. 20036-4104

Telephone: (202) 296-8510

Fax: (202) 872-9579

(d) Developing a State Supplemental Agreement

The State Conservationist, or designee, shall meet with the State mediation official, along with other USDA agency officials, as appropriate, to develop a State Mediation Supplemental Agreement. The Supplemental Agreement will describe:

• How the affected agencies will participate in the mediation program.
• The essentials of the mediation structure.
• The procedural guidelines.
• The forms to be used in the mediation process.
• A detail of the costs involved and the method for payment.

(e) Paying for Mediation

NRCS shall pay appropriate and reasonable costs associated with securing mediation services, if requested by the participant.

(f) Reasonable Costs

Reasonable costs are considered as follows:

• State certified programs - The pro-rata share is the cost specified for each of the parties in the State Program.
• Non-State certified States - The pro-rata share is determined by dividing the total cost among all the parties in the mediation.

Note: The State Conservationist may use discretion in deciding what constitutes reasonable costs, as long as the decision to pay more than the pro-rata share is not considered to be capricious or arbitrary.

• If a decision is made to pay more than the pro-rata share, the State Conservationist shall provide documentation of the reasons for this decision.

(g) Payment Authorization

Public Law 103-354, 7 U.S.C. 6995, and 16 U.S.C. 590a(3) authorizes payment for mediation of NRCS technical determinations or technical decisions. Payments will be made from the applicable program fund, or, if there are no specific program funds available, the payments for mediation will come from the State's General budget.

The State Conservationist or the Regional Conservationist shall make the final funding decisions.

Note: Supporting documentation for payment should consist of a letter or report that includes an explanation of:

• The issue being mediated
• Facts surrounding the issue
• The complexity of the issue
• The reason NRCS used mediation

510.32 Requesting Mediation

(a) Processing Requests

A participant must request mediation within 30 calendar days after the date of the written notification of the agency's technical determinations or technical decisions. This policy is applicable to both the Title XII and non-Title XII conservation programs. The following guidance is provided.

(b) Mediator Selection

The participant shall have the right to select the mediator, within the cost constraints outlined in Paragraphs 510.31e through 510.31g.

The participant may request that a trained mediator be added to the current NRCS list. If the mediator meets the requirements established by the State Conservationist, the mediator may be added to the list.

(c) Participant Responsibility

At the time the participants make arrangements for mediation, they should inform NRCS of the mediation request.

(d) Other Agency Notification

In all cases involving Title XII programs, the NRCS official shall inform the FSA State Executive Director (SED), through the State Conservationist, that mediation has been requested. If the participant has issues that are also being appealed, or may be appealed through FSA, an FSA official may need to be included in the mediation sessions.

In cases involving wetlands, inform the Fish and Wildlife Service (FWS), the U.S. Army Corps of Engineers (COE), and the Environmental Protection Agency (EPA) of the mediation session and request their participation if it is necessary to conduct meaningful resolution discussions.

510.33 Responsibilities and Roles

(a) Delegation of Authority

The State Conservationist must give the authority to enter into a mediation resolution agreement to a designated NRCS employee, or be willing to participate in the mediation session personally.

The NRCS official participating in the mediation session must have the authority to commit the agency to a solution. Agreement must be able to be reached during the mediation session, not through remote communications with the State Conservationist, to get approval on a potential solution.

(b) Roles of NRCS

NRCS must participate in the mediation process in good faith. This obligation includes:

• Demonstrating consideration for and understanding of participants who choose mediation.
• Gathering all documents relevant to the dispute.
• Setting a positive, constructive tone in mediation sessions.
• Cooperating with requests for information or analysis of information made in the course of mediation.
• Encouraging a positive, constructive approach by other participants in the session.
• Making a conscientious effort to identify and explore additional options that may Resolve the dispute, including equitable relief, if applicable.
• Making timely presentations of dispute resolution proposals requiring actions or approvals under broader authorities than the State Conservationist has delegated authority to authorize.

(c) Roles of Mediators

Mediators have no authority to bind the participants in mediation. The mediator's role is to:

• Lead the mediation participants and help make discussion easier.
• Assist in planning the agenda, setting up the equipment, and maintaining the session climate.
• Establish the ground rules and maintain the participant's focus.
• Encourage participation.
• Take notes, or provide for this.
• Engage the participants in brainstorming.
• Safeguard the process to ensure that no party in the mediation session is unfairly pressured.
• Assist in drafting any resolution agreements.

(d) Roles of Participants

The participant's duties include:

• Gathering all relevant documents to the dispute.
• Making a list of all participants, including appropriate business partners, relatives, and USDA or other Federal officials that need to be involved in the session.
• Considering what is most important to the other participants of the dispute:

• What are the options?
• What are the alternatives?

• Keeping an open mind.
• Identifying all relevant information that may help resolve the dispute.

510.34 Roles of Conservation Districts in Mediation

(a) Trained Mediators

Conservation District representatives may become trained mediators.

(b) Requirements Certified State

In States with certified mediation programs, if Conservation District officials are interested in becoming mediators, they will be asked to participate in the training provided by the certified State mediation program.

Note: Check with the specific State certification requirements regarding Conservation District officials becoming mediators. Some States do not permit Conservation District officials to become mediators.

(c) Requirements Non-Certified State

In non-certified States, mediation training for district officials wishing to become mediators will be contracted for with groups that specialize in mediation training.

As representatives of conservation districts become trained, participants will be provided with the list of trained district mediators, from which they may select a mediator. If, for some reason, the participant is not comfortable with the district official serving as a mediator, the participant will be given the opportunity to select a mediator other than a district official.

510.35 Closing Out Mediation

(a) Mediation Resolution Agreements

Any agreement reached during, or as a result of, the mediation process shall conform to the statutory, regulatory, and manual provisions governing the program.

(b) Disputes Resolved Without Modification to the NRCS Decision

If mediation results in a resolution through agreement that the issues in mediation were correctly decided by the agency, the mediator will draft an agreement for execution by the participant and any other affected parties that includes at least the following terms:

• For each issue mediated, a statement of the NRCS position regarding the issue and confirmation that the agency's position on the issue is accepted by the participant.
• A statement that the positions set out in the agreement have been reviewed by the participant and reflect the participant's understanding of the issues that were to be mediated.

Once executed by the participant, the mediation agreement will conclude the appeal process.

(c) Disputes Resolved With Modification to the NRCS Decision

If the mediation results in a resolution requiring NRCS to agree to modify one or more terms of the decision mediated, the mediator shall draft an agreement for execution by the participant, NRCS, and any other affected parties that includes at least the following terms:

• A statement of the terms of the parties' agreement on each mediated item.
• For each mediated issue, a statement of the actions that the parties have agreed to take to implement their agreement on the issue and the schedule for such actions.
• A statement that the positions set out in the agreement have been reviewed by the participant, NRCS, and other affected parties and reflect their respective understandings of the terms for resolution of the mediated issues.

The mediator will ensure that all parties receive a fully executed copy of any agreement reached through the mediation. This will conclude the appeal process on the issues resolved by this agreement.

(d) Impasse Among the Parties to Mediation

Participants may agree to discontinue a mediation session. The mediator will document the parties' discontinuance of the mediation session with a resolution agreement indicating the following:

• A statement of the terms of any agreement reached by the parties on a mediated issue.
• A statement that the parties reached an impasse.
• A statement notifying the parties that the participant has 30 calendar days from the date of the report to exercise any further rights of appeal.

If the parties have reached agreement on certain of the issues mediated, the mediator will make every reasonable effort to obtain the parties' acknowledgment of the substance of the report.

If an agreement is not reached, the mediation process is closed, and the parties may continue to pursue relief through the appeal process through NAD, and then, through other legal remedies.

(e) Restrictions on Reopening Mediation

Parties may attempt to re-mediate an impasse issue by reopening mediation only when:

• The participant requests that the mediation be reopened and additional information is presented that will have an affect on a possible resolution.
• Additional information is requested by the NRCS decision maker.
• The NRCS official designated as the decision maker, or the State Conservationist, makes a counter proposal and agrees, with the written concurrence of the State Conservationist, that the mediation may be reopened.

(f) Terminating Mediation by a Mediator

The mediator has the right to terminate a mediation when either of the following apply:

• A necessary party in the mediation is not participating in good faith.
• The mediator determines that the mediation is at impasse.

As applicable, the mediator will provide a notice of impasse to the State Conservationist and, if applicable, to the State Certified Mediation Program.

At the time of termination of the mediation, the mediator will provide written notice to the parties that:

• The mediation is closed.
• The parties are free to pursue their further appeal rights.

Part 510 Appeals and Mediation

Subpart E - Reserved

Part 510 Appeals and Mediation

Subpart F - National Appeals Division

510.50 General Information

(a) General Information

This part provides General information regarding the National Appeals Division (NAD) and guidelines to assist NRCS offices in handling appeals filed with NAD, for both Title XII and non-Title XII conservation programs.

(b) Organizational Structure

NAD is an organization within the USDA, independent from all other agencies and offices of the Department.

The NAD Director's office is located in Alexandria, Virginia, but NAD also has regional offices (see Subpart G, Section 510.76, Exhibit 16 for the NAD regional office addresses and the States served by the specific regional office.)

• Eastern Regional Office - Indianapolis, Indiana.
• Southern Regional Office - Cordova, Tennessee.
• Western Regional Office - Lakewood, Colorado.

(c) Functions

Through the NAD appeals process, participants in USDA programs are afforded an opportunity for a hearing before a neutral hearing officer who is not bound by any prior agency findings of fact. The hearing officer may make independent findings of fact but must apply the law and regulations of the agency to the facts as found.

510.51 Appeal Rights under NAD

(a) Participant's Rights

Participants have the right to:

• File an appeal of a Title XII technical determination after appeal to the FSA county/area committee.
• File an appeal with NAD of any NRCS technical decision for non-Title XII conservation programs.
• File a request with the NAD Director to determine the appealability of an NRCS technical determination or decision.
• Request a NAD Director review of a hearing officer's determination.
• Request a reconsideration of the NAD Director decision.
• Request an in-person hearing in the participant's State of residence or a location convenient to the appellant, NRCS, and NAD.
• Request a hearing within 45 calendar days of the appeal request.
• Have an individual represent them in the NAD appeal process.
• Participate in a pre-hearing conference with the NAD hearing officer and NRCS before the hearing.
• Receive notification of the appeal hearing at least 14 calendar days before the scheduled hearing.

(b) Agency Rights

NRCS has the right to:

• Participate in a pre-hearing conference with the NAD hearing officer and appellant before the hearing.
• Receive notification of the appeal hearing at least 14 calendar days before the scheduled hearing.
• Participate in the NAD hearing and present the agency's case to support the technical determination or decision.
• Request a Director review of an NAD hearing officer's determination.
• Request a reconsideration of the NAD Director decision.
• Select the individual who will represent the agency at the appeal hearing.
• Withdraw the agency's adverse technical determination or decision.

• Note: Some appeals to NAD are of NRCS technical determinations or technical decisions and some are FSA county committee decisions based on NRCS technical determinations.

(c) Burden of Proof

The appellant has the burden of proving that the NRCS technical determination or technical decision was erroneous by a preponderance of the evidence. This means that the appellant must show that it is more likely than not that the agency's technical determination or technical decision is wrong.

510.52 NAD Appeal Process

(a) Agency Record

The agency record, with respect to a NAD appeal, consists of documents contained in the administrative record that are related to the technical determination or technical decision on appeal and are not otherwise protected by other laws. In all cases, include a copy of relevant regulations, statutes, and agency operating procedures relied upon by the agency in reaching the adverse technical determination or decision.

(b) Access to Records

The NAD Director, hearing officers, and the appellant shall have access to the agency record of any adverse technical determination or technical decision appealed to NAD.

(c) Submitting the Record

During the NAD prehearing teleconference, the NAD Director or hearing officer will notify the agency to submit a copy of the agency administrative record. Upon receipt of this notice, the agency must promptly submit the record within 10 calendar days of receipt of the request. A copy of the agency record must also be provided to the appellant, during the same 10 calendar days of receipt of the request.

(d) Labeling Requirements

All documents relied upon by the agency in making the technical determination or decision shall be placed in the Exhibits. However, not all documents contained within the administrative record will be placed in the Exhibits.

The documentary evidence presented at the hearing shall be kept organized and as easy as possible to find, follow, and use, both during the hearing and later. Each document submitted as evidence during the hearing shall be labeled in advance of the hearing. Documents will be labeled in the lower right corner, numerically, with each page of the Exhibit numbered.

Example: "Agency Exhibit 1, page 3 of 24"

Normally, each party is asked to submit Exhibits in advance of the hearing, with an exchange of Exhibits between the parties to be discussed at the pre-hearing teleconference. Ensure that the hearing officer and the appellant each receive a copy of the agency's Exhibits.

(e) Hearing Record

The hearing record consists of all documents, evidence, and other materials generated in a NAD hearing.

All documents that are part of the agency record will be entered into the hearing record.

(f) Verbatim Transcripts

The agency may request a verbatim transcript if the State Conservationist determines that a verbatim transcript is necessary to protect the agency's interests. The agency should only request a verbatim transcript in cases involving the following:

• Extremely sensitive issues.
• High-profile cases.
• Complex cases involving many issues or appellants.

(g) Official Recordings

An official recording will be made of the proceedings of every hearing and pre-hearing teleconference. This record will be made by an official tape recording by NAD. In addition, either party may request that a verbatim transcript be made a part of the official hearing record. The party requesting the transcript shall:

• Pay for the transcription service.
• Provide a certified copy to the hearing officer free of charge.
• Allow any other party desiring to purchase a copy of the transcript to order it from the transcription service.

(h) Written Statements

Parties may introduce written statements made by others. The hearing officer should accept this evidence if the party who submits the statement was sworn. If the witness who made the statement is not available for questioning, the agency representative should ask sufficient questions to determine the identity and impartiality of the witness and the basis for the witness's knowledge.

510.53 NAD Hearings

(a) Pre-Hearing Conferences

Pre-hearing conferences are required and will be conducted by telephone unless otherwise agreed to by all parties and the hearing officer. They are normally held at least 14 calendar days prior to the NAD appeal hearing. These conferences shall be used as a tool to ensure that the agency's technical determination or decision and position is clearly understood by the hearing officer and the appellant.

Pre-hearing conferences allow the parties to:

• Resolve disputes.
• Clearly define the issues under appeal.
• Narrow the issues under appeal.
• Clarify procedure to be followed during the NAD appeal process.
• Stipulate to certain facts relevant to the case, but not in dispute.

(b) Components of the Pre-Hearing Conference

The pre-hearing conference is not intended as an opportunity for the parties to present evidence. The NRCS representative will be requested to specify the regulatory citations and the applicable agency operating procedures relied upon to reach the technical determination or technical decision.

Pre-hearing conferences may also be used to discuss whether particular witnesses or Exhibits are in fact necessary and what evidence must or should be presented. Also, the hearing officer will discuss the various hearing options available to the appellant.

Pre-hearing discovery, a technique used by parties to obtain evidence from each other in civil procedures, is not allowed by the NAD regulations.

(c) Features of NAD Hearings

Under NAD rules of procedure, the agency technical determination or technical decision under appeal is presumed to be correct. Therefore, while hearing officers exercise control over the conduct of hearings, normally after both parties have made opening statements, the appellant will be required to submit evidence or make other arguments to demonstrate that the appealed adverse technical determination or technical decision is erroneous.

The record of an NAD hearing should exclude irrelevant, immaterial, and unduly repetitive evidence and should reflect that the reliability and credibility of evidence submitted has been considered.

(d) Types of Hearings

Appellants have the right to have the following:

• Telephone hearings held by teleconference if the appellant agrees. In this type of hearing, the process is essentially the same as if it were in person. For the hearing record, parties should identify all individuals present.
• A Record Review based on the agency record and other information submitted by the appellant and the agency. If the appellant requests a record review:

• Both parties have the opportunity to submit information in documentary form to the hearing officer.
• The hearing officer will notify the agency and the appellant of the right to submit additional evidence, the established deadlines, and other requirements as applicable.

• A Hearing in Person.

(e) Hearing Officer Actions

In preparation for the hearing, the hearing officer will set a reasonable deadline for submission of the following documents by the:

• Appellant:

• A short statement of why the technical determination or decision is wrong.
• A copy of any document not in the agency record that the appellant anticipates introducing at the hearing.
• A list of anticipated witnesses.
• A brief description of the evidence each witness will offer.

• Agency:

• A copy of the technical determination or decision the appellant is challenging.
• A written explanation of the agency's position, including the regulatory or statutory basis, detailing the anticipate Exhibits to be submitted to the hearing officer and their significance in support of the technical determination or decision under review.
• A copy of any document not in the agency record that the agency plans to introduce at the hearing.
• A list of anticipated witnesses.
• A brief description of the evidence each witness will offer.

(f) Opportunities at Hearings

Parties to the appeal shall have the opportunity to:

• Present oral and documentary evidence.
• Present oral testimony of witnesses.
• Present arguments in support of the party's positions.
• Dispute evidence relied on by any other party.
• Question all witnesses.

(g) Normal Order of the Hearing

The normal order of a NAD hearing Generally will be as follows:

Note: This order may be deviated from dependant upon the hearing officer and with the agreement of all parties.

510.54 Specific NAD Hearing Procedures

(a) Opening Statement

The NRCS representative should use the opening statement to summarize the evidence in the agency record that supports the agency's technical determination or technical decision. (See Subpart G, Section 510.74, Exhibit 14.)

If the agency feels that NAD is hearing a non-appealable issue, an objection to the issue should be made.

(b) Relevant Evidence

Only evidence that is relevant to the underlying issues should be submitted to the hearing officer. Relevant evidence is Generally defined as evidence that has any tendency to make the existence of any fact more probable or less probable than it would have been without the evidence. Hearing officers have the authority to exclude evidence if it is determined that the information is irrelevant or repetitive, though either party may object for the record to any such exclusions. The NAD regulation (7 CFR Part 11.1 (11) Definitions, Agency Record, requires that "All materials contained in the agency record submitted to the Division shall be deemed admitted as evidence for purposes of a hearing or a record review under section 11.8."

Evidence may be presented in three forms:

• Testimony by the parties.
• Testimony by other witnesses.
• Through documents.

NAD hearing officers may allow presentation of evidence at the hearing by any party without regard to whether the evidence was known to the agency at the time the adverse technical determination or decision was made.

(c) Rebuttal

Each party is afforded the opportunity to present evidence. This includes an adequate opportunity to rebut the other side's case. It is the hearing officer's responsibility to ensure that each party has sufficient opportunity for rebuttal.

(d) Exhibits and Documentary Evidence

There may be instances in which documentary evidence presented at a hearing has not been exchanged prior to the hearing. In such instances, the party seeing information for the first time may ask for time to review the new evidence. If this happens, the hearing officer may provide some time by taking a short recess or, in unusual cases, may postpone the rest of the hearing until a later date.

Each party has the right to object to evidence before it is accepted into the record. A party may argue that the evidence is irrelevant, cumulative, or unnecessarily prejudicial. If a hearing officer accepts evidence into the record in the face of an objection, the hearing officer will usually state for the record why the evidence was accepted. Likewise, if evidence is rejected, the hearing officer will usually make a similar statement for the record. The mere acceptance of evidence into the record is not indicative that the hearing officer accepts what the evidence purportedly represents. The hearing officer has the authority to determine the appropriate weight accorded to each piece of evidence in the record.

Note: All materials maintained by the agency related to the determination/decision under consideration, and which have been submitted as the agency record to NAD shall be deemed admitted as evidence. (See 7 CFR Part 11.1, Definitions, Agency Record.)

The hearing officer also has the right to introduce documents into the record. If the hearing officer decides to take such action, each party to the hearing will have the opportunity to review evidence and respond accordingly.

If, for some reason, evidence was not available for the hearing that a party or the hearing officer believes relevant to decide the case, NAD rules allow for the record to remain open for 10 workdays for the additional submission of evidence. The hearing officer has the authority to either adjourn the hearing or to continue the hearing in lieu of the new evidence submission.

(e) Witness Testimony

Testimony is evidence given verbally under oath by the parties or by witnesses. Witnesses should limit testimony to factual information within the scope of their experience and should focus on the factual evidence. Testimony should not include arguments.

All witnesses, including the parties involved in the hearing, are required to be sworn prior to providing testimony.

When appropriate, agency witnesses requested by the appellant will be made available at the hearing. An employee who receives a request to testify at an NAD hearing shall immediately notify the State Conservationist, or designee. The employee shall not provide any statements to the hearing officer or the appellant without the prior knowledge and consent of the State Conservationist.

Both parties may cross-examine all witness. If the appellant or the appellant's representative asks improper questions, the NRCS representative may object to this practice or may point out to the hearing officer that the representative is leading the witness or asking improper questions.

(f) Post-Hearing Procedure

The hearing officer will leave the hearing record open after the hearing for 10 workdays, or for such period of time as the hearing officer shall establish, to allow submission of information by the appellant or the agency, to the extent necessary to respond to new facts, information, arguments, or evidence presented or raised at the hearing.

The hearing officer will add any new information submitted to the hearing record. The party submitting the additional information shall provide copies to the other party.

The hearing officer may, at his or her discretion, allow the parties to the appeal to make a response to the newly submitted information.

(g) Hearing Officer Authority

In making a determination on the issue under review, the hearing officer is not bound by previous findings of fact on which the agency based its technical determination or decision. Therefore, the hearing officer has the authority to make findings of fact and base the decision on such finding based on the statutes and regulations governing the program.

(h) Closing Statement

The NRCS representative should ensure that the agency's closing statement sufficiently summarizes the evidence in the hearing record that supports the agency's technical determination or decision and refutes the appellant's position.

Example: "The hearing officer should uphold the agency technical determination [or technical decision] because [state the reasons], [and/or] the appellant failed to meet his/her burden of proof because [state the reasons]."

Written closing statements are Generally not necessary. A written statement should be submitted to ensure program integrity in extremely complex cases, cases that need additional clarification, or other similar cases.

If additional information is to be submitted by either party, the NRCS representative should ensure that before the close of the hearing, the hearing officer establishes deadlines to submit such evidence.

(i) Reopening Hearings

Circumstances may require the hearing officer to reopen the hearing or the hearing record. Such situations include:

• The hearing officer receives unsolicited and relevant evidence from either party after the hearing record is closed.
• NAD Director remands the case to the hearing officer for additional evidence.

510.55 NAD Hearing Officer Determination

(a) Timeframes

NAD hearing officers will normally issue appeal determinations to appellants, their representatives, and the FSA or NRCS Chief (depending on jurisdiction of the case) not later than 30 calendar days after the date of the hearing or the closing date of the hearing records.

The timeframe for record reviews is 45 calendar days of the receipt of a request for review from the appellant.

Record reviews are a review of the information in the administrative record and any information submitted by the appellant to determine if the agency made an appropriate technical determination or technical decision according to the rules and statutes.

(b) Distribution of the Decision

The hearing officer decision will be forwarded to the appropriate State Office (via FSA if Title XII) for action, if any is required on the part of NRCS.

State Conservationists will ensure that the NAD final determination is fully implemented not later than 30 days after the effective date of the notice of final determination, unless a NAD Director review is to be requested.

(c) Effect of NAD Decision on HELC/WC Determinations

If a NAD decision reverses an agency technical determination for Highly Erodible Land Conservation or Wetland Conservation Compliance (HELC/WC), and all requests for review or reconsideration fail, or the agency does not request a review, NRCS shall issue a revised NRCS-CPA-026-E, changing the HEL or WC determination to NHEL/NAD or NW/NAD, etc. The letters NAD will denote that the determination is based on a NAD decision. Also note that the NAD decision is only applicable to the program area the decision is rendered, (the Food Security Act of 1985, as amended). Other local, State, or Federal laws, regulations, and/or permits may still apply.

510.56 NAD Director Reviews

(a) Requesting a NAD Director Review

Both parties to the appeal may request a NAD Director review of a hearing officer determination. The timeframes are as follows:

• NRCS Chief - Not later than 15 business days after the date on which the agency receives the NAD hearing officer's decision.
• Appellant - Not later than 30 calendar days after the date the appellant receives the hearing officer's decision.

When requesting a NAD Director review, the party filing the request must provide the other party with a copy of the request. Failure to do so may result in denial of the request due to ex parte communications. (See Section 510.09)

The NAD Director will promptly notify the agency decision maker of an appellant's request for review. (For Title XII conservation program appeals, FSA will be the agency NAD will provide with notification.)

NOTE: In Title XII conservation program appeals, coordination and communication with FSA is required, as they will usually be the agency notified by NAD of any requests for additional review.

(b) Responding to Appellant's Request for Director Review

NRCS will have five business days upon receipt of the notification from NAD to respond to the appellant's request for a NAD Director Review. If a response is warranted, State Conservationists are to:

• Prepare replies to an appellant's request (in coordination with FSA for Title XII conservation program appeals).
• Fax the response to the Conservation Operations Division of NRCS (COD).

A complete copy of the agency response must be provided to the appellant or to the appellant's designated representative. Failure to do so may result in NAD's disregarding the agency response.

(c) Guidelines for NRCS Director Review Request

Within five working days of receipt of a hearing officer's decision that determines agency error, the State Conservationist must provide a recommendation to the Chief, if an NAD Director review should be pursued. An analysis explaining the recommendation should be included with the following information:

• The case background, including the important and relevant facts of the case.
• An actual or approximate value of program benefits at issue.
• An assessment of the significance of the decision to implementation of agency programs.
• A summary of the relevant issues, including the reasons why the hearing officer's decision should be challenged or why the decision should not be challenged, such as specific errors of fact or erroneous application of regulations or agency procedures.
• Specific recommendations regarding whether a request should be submitted to the NAD Director seeking a review of the hearing officer's decision.
• Exhibits submitted during the hearing by the agency and the appellant that had a significant impact on the hearing officer's decision.
• For Title XII conservation program appeals, the request should be coordinated through FSA.

The request should be faxed to COD at 202-720-4265.

Note: Do not submit the complete administrative record unless specifically requested by NHQ. Do not submit original documents.

(d) Chief's Responsibillity

The Chief must submit a written request to the NAD Director within 15 working days from the date the agency receives a hearing officer's decision that reverses or modifies an agency technical determination or decision.

All agency requests for an NAD Director review must be:

• Signed by the Chief (FSA Administrator for Title XII conservation program appeals).
• Coordinated through the Conservation Operations Division.

(e) COD Director's Responsibility

The Director, COD, will review the request and make recommendations to the Chief.

If it is determined that a NAD Director review is not warranted, the State Conservationist will be notified within 10 days of the decision, including an explanation of why the request was denied.

If the request for the NAD Director review is approved, the State Conservationist will be notified and furnished a copy of the request within 15 days.

All correspondence and information regarding agency requests for a NAD Director review, and all other correspondence and information provided to the NAD Director, will be coordinated through COD, Appeals and Compliance Team. Title XII requests will be additionally coordinated with FSA's Appeals and Litigation Group.

510.57 Requests for Reconsideration of a NAD Director Review Decision

(a) Timeframe

The Chief must submit requests for reconsideration of a NAD Director's decision within 10 workdays of receipt of the decision.

Note: For Title XII conservation program appeals, the request for a NAD Director reconsideration must be coordinated through the FSA Appeals and Litigation Group and the FSA Administrator.

(b) Requirements

A request for review of an NAD Director's decision must show either of the following:

• A material error of fact in the NAD Director decision.
• The NAD Director's decision is contrary to statute or regulations.

(c) State Office Review

If, upon review, the State Conservationist believes that the NAD Director's decision contains a material error of fact or is contrary to statute, regulation, or agency policy, the State Conservationist should contact the Director, COD, immediately.

510.58 Implementing NAD Decisions

(a) Final Decisions

Final decisions include:

• Decisions issued by an NAD hearing officer that become final as a result of no request for review by the NAD Director.
• Decisions that become final after review or reconsideration by the NAD Director.

(b) Proper and Prompt Action

NRCS personnel shall take appropriate actions in the case of all appeal actions to ensure that all final technical determinations or decisions are properly and promptly implemented. The agency is required to implement all final NAD decisions not later than 30 calendar days after the notice of the final determination. Timely implementation occurs when the first of the steps required to implement a final decision is initiated.

Part 510 Appeals and Mediation

Subpart G - Exhibits

510.60 General Information

(a) General Information

This subpart gives examples of formats and letters as cited throughout the previous subparts. These examples are only suggestions and should be modified to address the specific issue under consideration.

(b) Exhibits Included

The following table lists the Exhibits included in this subpart.

510.61 Exhibit 1, Example of the Agency Administrative Record Organization

Note: It should be noted that this format does not constitute an exact reconstruction of an agency administrative record, nor does it represent the exact order or presentation, but is a suggested format. It does not represent the only way to organize the agency record.

510.62 Exhibit 2, Administrative Record Content Checklist

(a) Administrative Record Contents

The items listed in the following table may be needed and/or required in the agency administrative record depending on the program and the technical determination or technical decision. This list may not be all inclusive, so a review of the applicable program manual, handbook, or regulation is suggested when compiling the agency administrative record or appeals Exhibits.

Note: This listing is not all inclusive. Anything having any bearing on the issues in the appeal needs to be made a part of the agency administrative record and/or presented as evidence in an appeal hearing.

510.63 Exhibit 3, Sample Letter Correcting a Technical Determination or Technical Decision

[Insert date]

[Insert participant's mailing address]

Dear [insert participant name]:

At your request, we reviewed the technical [determination or decision] for [insert program if applicable] for [insert tract/farm number]. On [insert date] we made a field visit to your tract and found that the following error(s) had been made:

[Give example(s) such as "the acreage affected was found to be smaller than originally delineated," etc.]

Attached is the corrected final technical [insert determination or decision]. (Use format shown in Exhibit 5 or similar format that will fully explain the technical determination or technical decision.) We have also provided [insert FSA, if applicable, or other agency(s) if applicable] with a copy of the corrected final technical determination for their records.

If you still disagree with the final technical [insert determination or decision] you may [complete the sentence with the appropriate appeals process with either of the following as applicable]:

[For Title XII programs only:] If you wish to appeal to the Farm Service Agency (FSA) county committee you may contact that office at [insert address and telephone]. If you do not appeal to the FSA county committee within 30 calendar days, no further consideration on the matter will be given.

or

[For non-Title XII programs:] You may (1) Request an appeal from the Natural Resources Conservation Service NRCS State Conservationist at [insert address and telephone]; 2: request mediation of the issues in dispute [insert contact address and telephone]; or 3: request appeal to the National Appeals Division (NAD) [insert address and telephone].

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

510.64 Exhibit 4, Sample Letter, No Change in the Technical Determination or Technical Decision

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

At your request, we reviewed the technical [determination or decision] for [insert program if applicable] for [insert tract/farm number]. On [insert date], we made a field visit to your tract and found that the [insert preliminary or final technical determination or technical decision] was made correctly. The following information supports the [insert preliminary or final technical determination or technical decision]:

Attached are the findings of the field visit and a final technical [insert determination or decision]. (Use format shown in Exhibit 5 or similar format that will fully explain the technical determination or technical decision.) We have also provided [insert FSA, if applicable, or other agency(s) if applicable] with a copy of the corrected final technical determination for their records.

If you still disagree with the final technical [insert determination or decision], you may [complete the sentence with the appropriate appeals process with either of the following as applicable]:

[for Title XII programs:] Appeal to the Farm Service Agency (FSA) county committee at [insert address and telephone]. If you do not appeal to the FSA county committee within 30 calendar days, no further consideration on the matter will be given.

or

[for non-Title XII programs:] to 1: Request an appeal from the Natural Resources Conservation Service NRCS State Conservationist at [insert address and telephone]; 2: Request mediation of the issues in dispute [insert contact address and telephone]; or 3: Request appeal to the National Appeals Division (NAD) [insert address and telephone].

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

510.65 Exhibit 5, Sample Technical Determination or Technical Decision Format

510.66 Exhibit 6, Sample Preliminary Technical Determination Transmittal Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

Attached is the Preliminary Technical Determination as requested for [insert program].

This preliminary technical determination will become final 30 calendar days from the date of this notification unless you notify this office at the above address or [insert telephone number] to request a field visit for reconsideration or mediation of the preliminary technical determination. This will be the only notification you will receive unless you contest the preliminary technical determination conveyed by this notification.

If after the preliminary technical determination becomes final you believe that the final technical determination is in error, you may elect to appeal to the Farm Service Agency (FSA) county committee at [insert address and telephone]. If you do not appeal to the FSA county committee, no further consideration on the matter will be given.

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

510.67 Exhibit 7, Sample Field Visit Acknowledgement Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This letter is to acknowledge your request for a field visit and reconsideration of the [specify the determination to be reviewed] [insert preliminary or final] [insert determination or decision] regarding [be specific as to the farm, tract, program, etc.].

[Identify the reviewing authority] will review your request on [insert date and time] at your farm, as agreed upon earlier. You, your authorized representative, or both are invited to be present during the field review and may submit any additional information in support of your request to participate in [insert program name].

If you are unable to participate in the field review, you may submit any information to NRCS at the above specific address within 15 calendar days of the date of this letter. [Reviewing authority] will consider all information gathered or presented during the field review and will arrive at the agency's final technical determination based on all applicable [program] procedures.

The final determination will be sent to you as soon as possible following the field review. If you have any questions regarding this matter, you may contact [insert name of contact person] at [insert telephone number].

Sincerely,

[Insert name of NRCS Official]

510.68 Exhibit 8, Sample Final Technical Determination or Final Technical Decision Transmittal Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

Attached is the Final Technical [insert determination or decision] as requested for [insert program].

If you believe that the [insert determination or decision] is in error, you may elect [complete the sentence for the appropriate appeals process with either of the following as applicable]

[for Title XII programs:] Appeal to the Farm Service Agency (FSA) county committee within 30 calendar days from the date of this notice, at [insert address and telephone]. If you do not appeal to the county committee, no further consideration on the matter will be given.

or

[for non-Title XII programs:] 1. Request, within 30 calendar days of the date of this notice, an appeal from the Natural Resources Conservation Service (NRCS) State Conservationist at [insert address and telephone]; Request mediation [insert address and telephone]; or Request appeal to the National Appeals Division (NAD) [insert address and telephone].

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

510.69 Exhibit 9, Sample State Conservationist Review and Appeal Acknowledgement Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This letter acknowledges your request for a field review and reconsideration of the [specify the determination to be reviewed] decision regarding [be specific as to the farm, tract, program, etc.] by [insert name], State Conservationist.

[Identify the reviewing authority] will review your request on [insert date and time] at [specify location]. You, your authorized representative, or both are invited to be present during the hearing, and may submit any additional information in support of your request to participate in [insert program name].

[Use the following paragraph if applicable]

As discussed previously, we would like to conduct a review in the field to verify facts and gather any additional information germane to your issue. [Insert name(s)] will be at you farm on [insert time and date] to conduct this review. You, your representative, or both are also invited to be present at this review.

The hearings are informal and verbatim transcripts are not ordinarily made. However, if you want a transcript to be made at your expense, please let us know at least a week before the hearing, and we will make arrangements. Neither NRCS nor the Department will reimburse you for any costs you may incur in connection with your request for a reconsideration.

If you choose not to attend the hearing, you may submit, before the scheduled review, any further facts or evidence you wish to be considered. [Reviewing authority] will consider your request and arrive at a decision based on the records and other information. The review will include all of the information submitted by you, in addition to the complete file pertaining to your case. You may be assured that the decision will be fair and equitable and made according to program procedure.

The final decision will be sent to you as soon as possible following the field review. If you have any questions regarding this matter, you may contact [insert name of contact person] at [insert telephone number].

Sincerely,

[Insert name of NRCS Official]

510.70 Exhibit 10, Sample Summary Outline for an Appeal

Note: The following hyperlinked information provides additional information and explanation for documenting technical determinations and technical decisions.

510.71 Exhibit 11, Sample State Conservationist Decision Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This responds to the request for a hearing you filed concerning [identify the issue under review including the appellant's name, if different from the addressee, program, program year, farm number, etc.].

Background

[State the relevant background or history that is reflected in the administrative record to present. For example, "The record shows that you entered into a contract to ...," It should be very similar, if not identical, to the information already shown in the "Background" section of the summary outline for the hearing.]

Appellant's Position

[Articulate the appellant's position and arguments. Be sure to include all arguments that are pertinent to the issue(s) being reconsidered. Irrelevant arguments need not be included.]

Finding of Facts

[Clearly state the relevant facts. All statements must be supported by program documents, program procedure, testimony, transcripts, etc. Cite the source, whether documentary evidence or verbal testimony, that the reviewing authority relied upon to make the finding of fact.]

Analysis

[Conclusions drawn from available facts and program provisions. Analyze the facts and address the appellant's arguments. This must be based on applicable program procedures (rules). Cite the program provisions (manuals, regulations, statutes) that are used and applicable.]

Decision

[Specifically state the decision in this section. Cite the regulatory or program procedure authority for the decision and specify the program consequences of the decision.]

If you do not believe this decision is in accordance with the applicable program provisions, you may either request mediation [if this option has not already been used] or appeal to the National Appeals Division at [insert the appropriate regional office address, telephone, and FAX numbers] within 30 calendar days of the date of this notification.

Sincerely,

[Insert name of NRCS State Conservationist]

510.72 Exhibit 12, Sample Appealability Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This letter is in response to your request for an appeal of [insert the issues and program technical determination(s) or technical decision(s) at issue].

The issue(s) that you have identified are not appealable because it/they is/are [insert the applicable reason, e.g., matters of General program applicability; matters of Federal statute or regulation]. (Cite the statute or regulation to support this, such as 7 CFR 614.5, and also the program regulation or statute that requires the use of a certain formula, etc., by regulation or statute in a General administrative manner, e.g., 7 CFR 610.14(a)).

If you wish, you may request an Appealability Review from the National Appeals Division, Assistant Director, [insert appropriate NAD regional office name, assistant director name, address, and telephone numbers]. The request must be filed within 30 calendar days of the date of this notification and include the reasons why you feel this matter is appealable.

Sincerely,

[insert name of NRCS Official]

510.73 Exhibit 13, USDA State Certified Mediation Programs

Note: Not all State Certified Mediation Programs will mediate conservation program issues. Check with the program contact before offering mediation services from these sources.

510.74 Exhibit 14, Example of NRCS Opening Statement for NAD Appeal Hearing

The Natural Resources Conservation Service, formerly the Soil Conservation Service, in conducting a wetland determination for a USDA program participant, which was triggered by an AD-1026 from the Agricultural Stabilization and Conservation Service office, identified approximately [insert acres] of wetlands on the [insert appellant's name] in [insert county/State]. The wetland determination was properly and correctly made, based on the definition that wetlands are "areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

The site in question was investigated by a soil scientist, engineer, and biologist to determine if hydric soils, hydrology, and a prevalence of wetland plants existed that would meet the wetland definition. Procedures were followed in accordance with Title 7 of the Code of Federal Regulations, Part 12, Subparts A and C. Technical criteria applied was in accordance with the 1987 Corps Wetland Delineation Manual.

Onsite conditions demonstrate that hydric soils, both Routon and Waverly series, occur. These soils were characterized as saturated based on the criteria that they Exhibited low chromas or colors, oxidized root channels, and concretions that form under anaerobic or no oxygen conditions. These soils were also confirmed onsite to be of known hydric soil series as indicated on the Natural Resources Conservation Service county hydric soils list.

Surface inundation was not evident on those areas confirmed as Routon soils. Some inundation was evident on part of the area mapped as Waverly soils. The hydrology of record for most of the site was due to saturation as indicated during the soils investigation, with some minor ponding.

The plant community was characterized as a hydrophytic plant community based on the predominance of plant species with a wetland indicator status of facultative or facultative wet.

The occurrence of these three parameters, (hydric soils, hydrology, and wetland vegetation) will be demonstrated in Exhibits to confirm that the area does meet the criteria of a wetland.

510.75 Exhibit 15, Example of an Evidentiary Presentation, NAD Appeal Hearing

The NRCS makes wetland determinations for USDA program participants in accordance with Title 7 of the Code of Federal Regulations, Part 12, amended 1/l/95, which is offered as Exhibit 1 at this hearing.

Subpart A, Section 12.7 states that "in order for a person to be determined to be eligible for any of the benefits specified in Section 12.4, it must be determined by SCS whether any farm in which the person applying for the benefits has an interest contains highly erodible land, wetland or converted wetlands. The person applying for the benefits must certify in writing on Form AD-1026 that such person will not plant an agricultural commodity on a converted wetland; or convert a wetland in order to make possible the production of an agricultural commodity."

Subpart A, Section 12.6, Administration by SCS, states that "a person may obtain a highly erodible land or wetland determination by making a written request on Form AD-1026. The determination will be made in writing, and a copy will be provided to the person."

Exhibit 2 shows that the local SCS office received an AD1026 on June 24, 1988. This Exhibit also contains the resultant wetland determination of 44 acres of wetlands as indicated on the SCS-CPA-026. This determination was made utilizing offsite procedures allowed under Subpart A, section 12.6. The wetland determination was re-issued on July 26, 1994 with no change.

Upon receiving a request for reconsideration from the landowner in August 1994, the District conservationist conducted an onsite wetland determination. Later in the NRCS appeal process, procedures for conducting an onsite wetland determination were applied in accordance with a Memorandum of Agreement between the U.S. Environmental Protection Agency, U.S. Department of Agriculture, U.S. Department of the Interior, and the Department of Defense. This Agreement, excerpts from which are presented as Exhibit 3, was signed January 6, 1994, and provides the manner in which wetland delineations and certain other determinations of waters of the United States made by the U.S. Department of Agriculture under the Food Security Act will be relied upon for purposes of Section 404 of the Clean Water Act.

In Exhibit 3, agricultural lands are defined. The Memorandum of Agreement so states that agricultural lands DO NOT include forest lands, wood lots, or tree farms. The Memorandum of Agreement further states that delineations on non-agricultural lands will be in accordance with the 1987 Corps Wetland Delineation Manual.

In Exhibit 4, Part II of the 1987 Corps Wetlands Delineation Manual defines a wetland as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

Wetland determinations are made utilizing the following diagnostic environmental characteristics:

1. A prevalence of hydrophytic vegetation typically adapted to anaerobic soil conditions.

2. Soils present have been classified as hydric, or they possess characteristics that are associated with reducing soil conditions. Reducing soil conditions occur when oxygen is removed from the soil.

3. The area is inundated either permanently or periodically, or the soil is saturated to the surface at some time during the growing season of the prevalent vegetation.

A positive wetland determination is considered when these three parameters are met.

Wetland determinations are made based on indicators as described in Part III of the 1987 Corps Wetland Delineation Manual. A positive hydrophytic vegetation determination is appropriate when more than 50 percent of the dominant species from all plant strata are Obligate, Facultative Wet or Facultative. These terms will be explained in a later Exhibit. Hydric soils are defined as saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions that favor the growth and regeneration of hydrophytic vegetation. Hydric soil criteria specify that the soil be saturated for at least 15 consecutive days, or inundated for seven or more days during the growing season in most years. Some indications of hydric soils include aquic moisture regimes, reducing soil conditions, gleyed soils, soils with chromas of two or less in mottled soils, soils with chromas of one or less in unmottled soils, soils appearing on the hydric soils list, and iron and manganese concretions.

Wetland hydrology encompasses periodic inundation or soil saturation to the surface at some time during the growing season. Hydrology is indicated by such things as drainage patterns, drift lines, sediment deposition, watermarks, stream gage data, flood predictions, historic records, visual observation of saturated soils, and visual observation of inundation. The 1987 Corps Wetlands Delineation Manual states that wetland hydrology exists if field indicators are present, with hydrology indicated if one primary or two or more secondary indicators are present.

Growing season is considered frost free days and is estimated from climatological data provided in published soil surveys based on 28 degree Fahrenheit days 5 years out of 10.

Exhibit 5 contains a copy of the soils map from the NRCS published soil survey indicating the soils that occur on the wooded portions in question on farm number 1566, tract 2228. Three soil map units, Routon, Waverly and Falaya are indicated to occur on the site. The Routon and Waverly soil map units, indicated by soil map symbols Rt for Routon and Wa for Waverly, are indicated on the county hydric soils list as hydric in [insert county name]. The Falaya series, indicated by the map symbol Fa, is indicated on the county hydric soils list as nonhydric but with possible inclusions of hydric Routon soils. Title 7 of the Code of Federal Regulations, Part 12, Subpart C, Section 12.31 in Exhibit 1 states, "SCS shall identify hydric soils through the use of published soil maps which reflect soil surveys completed by SCS. SCS shall determine whether an area of a field or other parcel of land has a predominance of hydric soils that are inundated or saturated as follows: If a soil map unit has hydric soil as all or part of its name, that soil map unit or portion of the map unit related to the hydric soil shall be determined to have a predominance of hydric soils." Section 12.31 goes on to state that an official list of hydric soil map units shall be maintained at the local SCS office and shall include all soils from the National List of Hydric Soils that can be found in that field office area. It further states that hydric soils are those soils that meet criteria set forth in the publication "Hydric Soils of the United States 198511, which was developed by the National Technical Committee for Hydric Soils. Paragraphs 36 and 44 g of the 1987 Corps Wetlands Delineation Manual states that soils are hydric that appear on this official list. The addendum to the 1987 Corps Manual also states that when available, the local hydric soils list takes precedence over the national list for hydric soil determinations.

Exhibit 6 illustrates a comprehensive onsite soils investigation conducted by [insert name of NRCS employee], a professional soil scientist. Those findings are illustrated on a revised soil map in Exhibit 6, with a reduction of the original soils mapping from approximately 44 acres down to approximately 38.5 acres of hydric soils. Sampling consisted of 22 sample points along a line that encircled the area in question. Those soils considered hydric onsite were confirmed to be Routon and Waverly soils. Those portions of the site considered mismapped were changed to Falaya and Collins soils, both considered nonhydric. The Falaya series was not considered to contain any hydric inclusions. Representative soil descriptions for the onsite observations of the confirmed Routon and Waverly soils are described in Exhibit 6 as soils with gray low chroma matrix colors within a few inches of the surface, reducing conditions, and common iron and manganese concretions. These are all described as indicators for hydric soil in the 1987 Corps Wetlands Delineation Manual in paragraphs 44 e, f, and h.

Plant transacts were conducted in October 1994. The entire site was walked to determine the number of plant communities that occurred. Plant communities for the Routon, Waverly and Falaya soil map units were considered uniform within each soil type. Visual determinations were made at locations indicated on the map in Exhibit 7. Percent cover was estimated based on crown canopy and percent ground cover. The 1987 Corps of Engineers Wetlands Delineation Manual states in paragraph 31 that "as used in the CE wetlands definition, the governing environmental conditions for hydrophytic vegetation are saturated soils resulting from periodic inundation or saturation by surface or ground water. These periodic events must occur for sufficient duration to result in anaerobic soil conditions. When the dominant species in a plant community are typically adapted for life in anaerobic soil conditions, hydrophytic vegetation is present." According to the 1987 Corps of Engineers Wetlands Delineation Manual, hydrophytic vegetation is determined by applying the Basic Rule. This rule states in paragraph 35 a and the addendum, that hydrophytic vegetation is present when more than 50 percent of the dominant species from all strata are Obligate, Facultative Wet, or Facultative, excluding Facultative (-). Table I of the 1987 Corps Manual clarifies the definition of plant indicator status. Obligate plants occur in wetlands with a probability of >99 percent. Facultative Wetland plants occur in wetlands usually >67 percent to 99 percent of the time. Facultative plants usually occur in wetlands from 33 percent to 67 percent of the time. Facultative Upland plants usually occur in wetlands from 1 percent to <33 percent of the time. Data collected clearly shows that the Routon site sampled contained a predominance of wetland plants with 78 percent of the dominant species hydrophytic.

The Waverly site sampled contained a predominance of wetland plants with 100% of the dominant species hydrophytic.

Paragraph 49 of the 1987 Corps of Engineers Wetlands Delineation Manual states that "indicators of wetland hydrology may include, but are not necessarily limited to: drainage patterns, drift lines, sediment deposition, watermarks, stream gage data and flood predictions, historic records, visual observation of saturated soils, and visual observations of inundation." Exhibit 7 indicates that over most of the site, there were no primary indicators of inundation such as water marks, drift lines or sediment deposits. A small part of the Waverly map unit was ponding water and contained a bald cypress, buttonbush plant community. The primary indicator noted onsite for wetland hydrology was saturation in the upper 12 inches as recorded by the soil scientists. At least three secondary indicators for hydrology were noted on each hydric soil map unit. These indicators included oxidized root channels, soil survey data, and a positive FAC neutral test. These are all indicators of soil saturation. The 1987 Corps of Engineers Wetland Delineation Manual states that wetland hydrology exists if such field indicators are present. Hydrology must occur for at least 5% of the growing season. Field indicators for saturation develop due to extended periods of hydrology. The aspect of soil and hydrology indicators reflecting conditions occurring for extended periods in the growing season are confirmed by oxidation around active root channels, and by the fact that the herbaceous plant community is dominated by hydrophytes.

Exhibit 8 introduces the National List of Plant Species that occur in Wetlands: Southeast (Region 2)1. This document, published by the U.S. Fish and Wildlife Service, assigns a wetland plant indicator status to basically all the plants that may occur in wetlands in [insert State]. Paragraph 35 and the addendum of the 1987 Corps of Engineers Wetlands Delineation Manual, as well as Title 7 of the Code of Federal Regulations, Part 12, Subpart C, Section 12.31, states that this document will be used to assign the wetland plant indicator status to those species identified in the determination.

Exhibit 9 contains photographs of plant communities at those locations where plant transacts were made. It also contains a soil profile of the Routon soil typically occurring onsite. Photograph 2 illustrates low chromas with mottles. Photographs 1, 3 and 4 provide insight into the hydrology of the area. Understudy plant communities are weak in the Routon and Waverly areas when compared to the understudy community of the Falaya soil area. Photograph 3 illustrates the standing water area on the Waverly map unit.

Exhibit 10 is the response letter from the State Conservationist in the NRCS appeal process reflecting the reduction of wetland acreage from the original 44 to approximately 38.5 acres. The data collected was provided to the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service in concurrence with Section IV B of the Memorandum of Agreement Concerning the Delineation of Wetlands For Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food Security Act ( Exhibit 3.) The agencies provided no return comment, indicating concurrence in the wetland determination made by NRCS. The letter from the State Conservationist also was intended to inform that conversion of a wetland would be potentially be a violation of both the Farm Bill and the Clean Water Act. The Natural Resources Conservation Service has an obligation to keep landowners informed by providing adequate information concerning environmental laws .

Exhibit 11 provides support documentation illustrating that conclusions were similar for two site investigations conducted by staff personnel of the Natural Resources Conservation Service. The documentation also clarifies why wetland acreage was reduced from 44 to approximately 38.5 acres.

In summary, procedures were properly followed, with the estimated final acreage Exhibiting adequate hydric soils, hydrology, and hydrophytic plants to identify the area as wetlands.

510.76 Exhibit 16, NAD Regional Offices