519.50  Cooperative Agreement Overview

A.  Background

(1)  A cooperative agreement is the legal agreement with which the Federal Government establishes partnerships with State, Tribal, or local government entities or nongovernmental organizations.  This agreement provides the needed flexibility at the State or local level for meeting program purpose and goals.  A copy of the current year’s cooperative agreement template is attached as Subpart J, Exhibits, Section 519.99 (check FRPP national SharePoint site for latest version).

(2)  State, Tribal, and local government cooperating entities that have statutory authorities that conflict with the content of the cooperative agreement template may request revisions to the cooperative agreement template.  The State Conservationist will forward a copy of the proposed cooperative agreement to the NRCS National Headquarters (NHQ) for review and approval.  If the revisions conflict with the statutory or regulatory authorities of FRPP, NHQ will forward a copy of the proposed cooperative agreement to the Office of the General Counsel for review and approval.  Once signed, a copy of any cooperative agreement that differs from the national template should be forwarded to NHQ.

B.  Requirements

The following items must be incorporated into the cooperative agreement:

(i)  A list of pending easement and interest offers with the following information:

·          The identification of the land parcels to be acquired

·          The landowner’s names

·          The type of easement or other interest to be acquired

·          The estimated easement or interest price and FRPP share

(ii)  Identification of the cooperating entity

(iii)  A description of the administrative, management, and conservation plan review responsibilities of NRCS or designee, and the management, monitoring, and enforcement responsibilities of the cooperating entity

C.  Required Paragraphs

(1)  A paragraph addressing the one of the following:

(i) “Rights of the United States” (for parcels that are the products of cooperative agreements from between 2006 through 2008).

(ii)  The “Contingent Rights of the United States” (for parcels that are the products of cooperative agreements from 1996 and prior years and cooperative agreements from FY 2009 and subsequent years for the term of the 2008 Farm Bill).

(2)  This reversionary clause to the United States must be included in the cooperative agreement and permits the USDA to protect the interests of the United States when an agreement with the cooperating entity or a landowner is voided.  The standard paragraphs used to protect the Federal interest are included in the cooperative agreement and FRPP conservation easements deeds.  The paragraphs are provided in Section 519.64(B)(11).

(3)  A paragraph addressing development and implementation of a conservation plan on highly erodible lands must also be included in the cooperative agreement.  The cooperative agreement should stipulate that a conservation plan on highly erodible lands will be developed and implemented in accordance with the National Food Security Act Manual and the NRCS Field Office Technical Guide.  The conservation planning paragraphs are provided in Section 519.64(B)(8).

(4)  A paragraph addressing general indemnification.  The general indemnification paragraphs are provided in Section 519.64(B)(11)(i).

(5)  A paragraph addressing warranty of title.  The warranty of title paragraphs are provided in Section 519.64(B)(11)(ii).

(6)  A paragraph addressing environmental warranty.  The environmental warranty paragraphs are provided in Section 519.64(B)(11)(iii).

(7)  A paragraph should be included releasing NRCS from any fiscal responsibilities as a result of fault or negligence by the landowner or cooperating entity, including any costs, damages, claims, liabilities, and judgments arising from past, present, and future acts by the landowner or cooperating entity.

(8)  A separate paragraph must describe the funding arrangement between NRCS and the cooperating entity, including potential sources and distribution of funding.

(9)  When parcels are being enrolled in FRPP based on the presence of historic and archaeological resources, a paragraph identifying the conservation values of the resources and the standards and guidelines for the treatment and maintenance of these resources is required.  The minimum standards will be the Secretary of the Interior’s Standards for the Treatment of Historic Properties.

D.  Entity Responsibilities

An eligible entity must hold title to the conservation easements.

(i)  The cooperating entity must monitor the easement for compliance with the provisions of the conservation easement deed and report the results of the monitoring to the State Conservationist at least annually.

(ii)  After consultation and approval by NRCS, a cooperating entity may assign another entity to manage and enforce the conservation easement or other interest in land.  Entities that meet FRPP entity criteria may co-hold the conservation easement title.

E.  Conservation Plan Violations

(1)  A violation of the conservation plan is a violation of the conservation easement deed.  NRCS will allow the landowner to remediate the violation in accordance with the policies and procedures outlined in the National Food Security Act Manual.

(2)  In the event of a violation, NRCS must notify the cooperating entity and the landowner and set a time frame to correct the violation.

(i)  NRCS will provide technical assistance to the landowner, the cooperating entity, or both.  However, it is the cooperating entity’s responsibility to enforce the terms and conditions of the easement.

(ii)  If the violation appeal rights and National Food Security Act Manual procedures have been exhausted, NRCS will report the conservation plan violation as an official conservation easement violation to the cooperating entity and the landowner.

(iii)  If the violation is not corrected by the landowner and cooperating entity, NRCS may take actions according to the “U.S. Government’s Contingent Right” or “Rights of the United States” paragraph included in the conservation easement deed.

F.  Easement Violations

A violation is considered to have happened if any of the following apply:

(i)  The land is converted or developed to nonagricultural uses not consistent with the purposes of the conservation easement.

(ii)  The conservation plan on highly erodible lands is not implemented or maintained (see Section 519.50(E)).

(iii)  Damage or destruction occurs to the resources identified for protection in the conservation plan, including highly erodible land and wetland conservation provision compliance (see Title 180, National Food Security Act Manual).

(iv)  The terms and conditions of the deed conveying the conservation easement or other interest are violated.

519.51  Cooperative Agreement Fund Obligation

A.  Obligating Document

(1)  The signed cooperative agreement is the obligating document that allows entities to purchase conservation easements from landowners.

(i)  Once NRCS, on behalf of the Commodity Credit Corporation, and the selected entity sign the cooperative agreement, funds may be obligated in the Foundation Financial Information System (FFIS).  Beginning with cooperative agreements signed in fiscal year 2009, funds may be obligated to a cooperating entity for multiple years with a single cooperative agreement.

(ii)  Cooperative agreements that provide for funding in multiple years do not guarantee funding in each year.  Each cooperating entity must submit parcels for ranking each year and must have parcels rank high enough to warrant funding each year to qualify for funding each year.

(2)  The funding for each fiscal year within a cooperative agreement will have a closing deadline and disbursement deadline.

(i)  Beginning with cooperative agreements signed in fiscal year 2007, entities must close on all easements within 18 months of the end of the fiscal year for which the funding is obligated (for example, parcels funded with FY 2011 funds must close on or before March 31, 2013).

(ii)  The funds will expire 2 years after the end of the fiscal year for which funding is obligated (for example, funds for parcels funded with FY 2011 funds must be disbursed on or before September 30, 2013).  Expired funds will be returned to the NRCS NHQ.

B.  Parcels Listed in Attachments to the Cooperative Agreement

Attachments to the cooperative agreement list the parcels that are intended to be acquired with the funds obligated in each fiscal year by the cooperative agreement.  Due to changing circumstances, parcels in the cooperative agreement’s attachment that are awarded FRPP funds may need to be dropped from the list and other parcels added.  When this occurs, other parcels may be added to the list and funded as long as the landowners meet the FRPP landowner eligibility criteria, the parcels meet FRPP land eligibility criteria, and the parcels can be purchased with the funds stipulated in the cooperative agreement.

C.  Cooperative Agreement Extensions

(1)  Cooperating entities must close on all easements within eighteen months of the end of the fiscal year in which the cooperative agreement is signed (March 31).  Cooperating entities may submit a request in writing to the State Conservationist for consideration to extend the closing date beyond eighteen months.  The closing date may be extended with approval by the State Conservationist.  The State Conservationist should only grant extensions due to circumstances beyond the control of the entity.  Extending a closing date does not require an amendment to the cooperative agreement as long as the expiration date of the agreement is not extended.  The State Conservationist must provide a written response to the cooperating entity within 10 business days of the entity’s request for an extension of time for closing.  A copy of this response will be provided to the National FRPP manager.

(2)  Extending the cooperative agreement expiration date will reduce the closing efficiency beyond 18 months, which may affect future FRPP fund allocations to the State and the entity requesting funding.  The cooperative agreement amendment may only be extended by the time needed to complete the easement acquisition.  Amendments to agreements due to delays on the part of NRCS must be documented in the cooperative agreement file.

(3)  Approval of amendments to cooperative agreements will only be approved by the State Conservationist or the Acting State Conservationist in the absence of the State Conservationist and cannot be delegated to other State staff.  The cooperative agreement amendment may extend the expiration date of the agreement.

(4)  Cooperative agreements may be amended more than once; however, a single amendment may not exceed 12 months from the date of expiration of the agreement or subsequent amendments.  Funds in agreements that are not disbursed before the agreement or amendment expires will be deobligated and returned to the NRCS National Headquarters.

(5)  When a cooperative agreement is amended to extend the agreement greater than 24 months from the end of the fiscal year of obligation, the State must provide the following information to the FRPP National Manager no later than 30 days from the approval of the amendment:

(i)  The name of the cooperating entity approved for the extension

(ii)  The agreement number and the fiscal year of the parcel(s)

(iii)  The easement closing and expiration dates in the amendment

(iv)  The amount of unexpended funds obligated to the agreement

(v)  Certification status of the entity (if applicable)

(vi)  Reasons the entity is requesting the extension

519.52  Cooperative Agreement Payments

A.  FRPP Contribution to the Cost of the Conservation Easement

(1)  The FRPP contribution towards the cost of purchasing a conservation easement or other interest in eligible land must not exceed 50 percent of the appraised fair market value of the conservation easement.  If the cooperating entity purchases real property rights that FRPP does not purchase, the FRPP contribution will be determined after deducting any part of the conservation easement value not related to FRPP purpose and goals (for example, rights of public access).

(2)  FRPP funds may not be used for easement transaction costs, such as surveys, appraisal, title insurance, legal fees, costs of conservation easement monitoring, and other related transaction costs.

(3)  For parcels that are the products of cooperative agreements from FY 2006 through FY 2008, NRCS will only pay for forested acreage that is less than or equal to the acreage occupied by the non-forested land cover.

B.  Cooperating Entity’s Contribution to the Fair Market Value of the Conservation Easement – Fiscal Years 1996 through 2008

(1)  Cooperating entities are responsible for 50 percent of the appraised fair market value of the conservation easement.  If the landowner is paid more than the appraised fair market value, the cooperating entity is responsible for 100 percent of the easement cost over the appraised fair market value.  Cooperating entities are also responsible for all conservation easement transaction costs, including surveys, appraisals, title insurance, legal fees, costs of conservation easement monitoring, and other related transaction costs.

(2)  In the case of a bargain sale, where the landowner chooses to donate part of the conservation easement value by accepting a payment less than the full appraised market value, the first 25 percent of the easement value donated reduces the entity share.  When the landowner donates between 25 and 50 percent of the easement value, the entity share remains at 25 percent.  When the landowner chooses to donate over 50 percent of the easement value, the remaining payment of the purchase price is split equally between the cooperating entity and the United States.

(3)  Figure 519-F1 summarizes different donation scenarios, based on an easement with an appraised fair market value of $100,000.

Click here for a copy of Figure 519-F1: Donation Scenarios for FY 1996 to FY 2008   

(4)  A statement signed by the landowner and the cooperating entity containing the following information must be delivered to NRCS with the FRPP application in order to confirm the amount of matching funds provided (see Subpart J, Exhibits, Section 519.94, “Estimate of Matching Funds”):

(i)  An estimate of the landowner’s donation

(ii)  The appraised fair market value of the conservation easement

(iii)  The conservation easement purchase price

(iv)  The cooperating entity’s recommended contribution to an acquisition fund and a stewardship fund

(v)  The contributions of NRCS and the cooperating entity

(5)  The estimate of a cooperating entity’s recommended contribution to an acquisition fund and a stewardship fund should be justified by an estimate of the expenses the cooperating entity will incur for acquisition administrative costs (survey, appraisal, title search, deed preparation, closing costs) and expenses for monitoring and enforcing the easement over time.

(i)  Contributions to the acquisition fund for the acquisition administrative costs are limited to the exact costs of those activities.

(ii)  State program managers must scrutinize recommended contributions for the stewardship fund of more than 2 percent of the appraised fair market value, not to exceed of $20,000. Amounts over $20,000 must be reviewed and approved by the National FRPP manager.

(iii)  State program managers must review the estimate of matching funds during the site review of the parcel to ensure that the landowners realize that FRPP does not require them to contribute to the stewardship fund or the easement acquisition cost.

(6)  A signed statement acknowledging the landowner’s donation, the appraised fair market value of the conservation easement, the conservation easement purchase price, and the contributions by NRCS and cooperating entity is required to confirm the amount of matching funds provided (see Subpart J, Exhibits, Section 519.108, “Form 230, Confirmation of Matching Funds (2002 Farm Bill)”).  This statement must be signed by the landowner and the cooperating entity and delivered to NRCS prior to FRPP fund disbursement and NRCS accepting the conservation easement deed on behalf of the Commodity Credit Corporation.

C.  The Cooperating Entity’s Share of the Conservation Easement – Fiscal Year 2009 and Subsequent Years

(1)  Cooperating entities are responsible for 50 percent of the appraised fair market value of the conservation easement.  If the landowner is paid more than the appraised fair market value, the cooperating entity is responsible for 100 percent of the easement cost over the appraised fair market value.  Cooperating entities are also responsible for all easement transaction costs, including surveys, appraisals, title insurance, legal fees, costs of conservation easement monitoring, and other related transaction costs.

(2)  In the case of a bargain sale, where the landowner chooses to donate part of the conservation easement value by accepting a payment less than the full appraised market value, the cooperating entity must contribute a minimum of 25 percent of the purchase price (appraised fair market value minus the landowner donation).

(3)  Figure 519-F2 summarizes different donation scenarios, based on an easement with an appraised fair market value of $100,000.

Click here for a copy of Figure 519-F2: Donation Scenarios for FY 2009 and Later   

(4)  A statement signed by the landowner and the cooperating entity containing the following information must be delivered to NRCS with the FRPP application in order to confirm the amount of matching funds provided (see Subpart J, Exhibits, Section 519.94, “Estimate of Matching Funds”):

(i)  An estimate of the landowner’s donation

(ii)  The appraised fair market value of the conservation easement

(iii)  The conservation easement purchase price

(iv)  The cooperating entity’s recommended contribution to an acquisition fund and a stewardship fund

(v)  The contributions of NRCS and the cooperating entity

(5)  The estimate of a cooperating entity’s recommended contribution to a stewardship fund should be justified by an estimate of the expenses the cooperating will incur over time in monitoring and enforcing the easement.

(i)  State program managers must scrutinize recommended contributions of more than 2 percent of the appraised fair market value, not to exceed of $20,000.  Amounts over $20,000 must be reviewed and approved by the National FRPP manager.

(ii)  State program managers must review the estimate of matching funds during the site review of the parcel to ensure that the landowners realize that FRPP does not require them to contribute to the stewardship fund or the easement acquisition cost.

(6)  A signed statement acknowledging the landowner’s donation, the appraised fair market value of the conservation easement, the conservation easement purchase price, and the landowner and cooperating entity’s contributions is required to confirm the amount of matching funds provided (see Subpart J, Exhibits, Section 519.109, “CCC-230, Confirmation of Matching Funds (2008 Farm Bill)”).  This statement must be signed by the landowner and the cooperating entity and delivered to NRCS prior to FRPP fund disbursement and NRCS accepting the conservation easement deed on behalf of the Commodity Credit Corporation.

D.  Cash Requirement of the Cooperating Entity’s Contribution

(1)  The cooperating entity’s share of the conservation easement appraised fair market value or purchase price must be a cash contribution. Examples of prohibited sources of the entity’s share include—

(i)  Land from another parcel.

(ii)  In-kind contributions, including administrative costs associated with conservation easement acquisition (e.g., surveys, appraisals, legal expenditures).

(2)  It is NRCS policy based on the letter and spirit of the FRPP authorizing statute that the cooperating entity acquires its minimum required share of the contribution from sources other than the landowner.

(3)  Under the authorizing statutes, FRPP is limited to providing 50 percent of the appraised fair market value of the conservation easement.  Cooperating entities and landowner donations must provide the other 50 percent of the appraised fair market value of the conservation easement.  There is no requirement for landowner donations,

(4)  Under the FRPP statute and regulations in force between FY 1996 and FY 2008 and cooperative agreements signed between FY 1996 and FY 2008, the cooperating entity is required to match the FRPP share with no less than 25 percent of the appraised fair market value or 50 percent of the purchase price.  Under the FRPP statute and regulation in force beginning in FY 2009 and cooperative agreements signed beginning in FY 2009, the cooperating entity is required to match the FRPP share with no less than 25 percent of the purchase price.  Purchase price is defined as the appraised fair market value minus the landowner donation.

(5)  Under no circumstances may the cooperating entity acquire its minimum cash requirement through additional cash contributions or payments made by the landowner, loans provided by the landowner, “monitoring or stewardship” fees, “acquisition” fees, or other such fees charged to the landowner.

(6)  The cooperating entity must estimate the landowner’s donation, the appraised fair market value of the conservation easement, the conservation easement purchase price, the cooperating entity’s recommended contribution to a stewardship fund or acquisition fund, and the contributions of NRCS and the cooperating entity is required to confirm the amount of matching funds provided (see Subpart J, Exhibits, Section 519.94, “Estimate of Matching Funds and Stewardship Fees (2008 Farm Bill)”).  This statement must be signed by the landowner and the cooperating entity and delivered to NRCS with the FRPP application.

(7)  The estimate of a cooperating entity’s recommended contribution to a stewardship fund must be justified by an estimate of the expenses the cooperating will incur over time in monitoring and enforcing the easement.  State program managers must scrutinize recommended contributions of more than 2 percent of the appraised fair market value, not to exceed of $20,000.  State program managers must review the estimate of matching funds and stewardship fees (2008 Farm Bill) during the site review of the parcel and discuss them with the landowners to ensure that the landowners realize that FRPP does not require them to contribute to the stewardship fund or the easement acquisition cost.

(8)  The cooperating entity is required to certify that its minimum required cash contribution comes from other sources outside of the landowner (see Subpart J, Exhibits, Section, “Form 230, Confirmation of Matching Funds (2002 Farm Bill)” and Subpart J, Exhibits, Section, “Form 230, Confirmation of Matching Funds (2008 Farm Bill)”).  This policy applies to both formal and informal agreements made between the landowner and the cooperating entity.

Note:  For purposes of this section, the term “landowner” includes the landowner’s immediate family members and organizations controlled or funded by the landowner or an immediate member of the landowner’s family.

E.  Transfer of Development Rights

Transfer of development rights programs exist in many areas across the country.  Where land is preserved through the sale of transfer of development rights, the acreage in question will not be counted as part of a landowner or cooperating entity’s match.  In addition, acreage already preserved by a transfer of development rights may not be enrolled under FRPP or used to meet any of the land eligibility requirements (e.g., 50-percent prime soils requirement).

F.  Installment Payments

Generally, payments by cooperating entities are paid in a lump sum.  However, installment payments made by a cooperating entity to a landowner are allowable under FRPP provided that the installment payments do not require an advance of FRPP funds.  Cooperating entities wishing to issue payments in installments for real estate transactions that involve the use of FRPP funds must—

(i)  Request payment on a reimbursable basis after a portion of the funds has been disbursed to the landowner in accordance with Section 519.71 (where funds are requested, the cooperating entity must disburse to the landowner twice the amount requested of NRCS.  For example, the cooperating entity may request $75,000 from NRCS after $150,000 has been paid to the landowner).

(ii)  Disburse the entire easement payment within the life of the cooperative agreement, which cannot exceed 5 years.

(iii)  Issue a portion of the entire easement payment on the closing date, as well as a letter to NRCS and the landowner detailing the payment dates of the other installments.

(iv)  Ensure that the conservation easement deed has been conveyed in its entirety and without condition to the cooperating entity at the conservation easement closing.

(v)  Receive prior approval from NRCS NHQ and the Office of the General Counsel of whatever instrument is used by the cooperating entity to promise a payment of the remaining easement purchase price (e.g., a promissory note that promises to pay the outstanding balance and sets forth the cooperating entity’s schedule of payment to the landowner).

Note:  Obligated FRPP funds cannot be held in an NRCS account for more than 5 years.  For this reason, cooperative agreements cannot extend beyond 5 years from the end of the fiscal year in which the cooperative agreement was signed.  Therefore, all installment payments must be made prior to the termination of the cooperative agreement.

G.  Payment Ineligibility

A person who applies and is determined to be ineligible under the adjusted gross income, highly erodible lands, or wetland conservation provisions of the Food Security Act, as amended, is not eligible to participate in FRPP or receive any FRPP easement payment from NRCS for the crop year that the person is found ineligible and all subsequent years that the person remains ineligible.  If a landowner is found to be out of compliance with the adjusted gross income, highly erodible lands, or wetland conservation provisions of the Food Security Act, as amended, following FRPP payment disbursement, the FRPP payment will only be rescinded if a court so orders.

519.53  Public Information, Media and News Releases

The NRCS Program Manager and State Public Affairs specialist will need to work closely with the cooperating entity to ensure NRCS is recognized for contributing FRPP funding towards easement acquisitions.  The cooperative agreement template will contain language requiring the cooperating entity to coordinate any fact sheets, brochures, news releases and publications with NRCS prior to publication.  The State program manager or public affairs specialist may negotiate specific actions and deadlines for review of any media materials.  This must be included in the cooperative agreement.

Subpart A – Locally Led Conservation Defined

500.0  Executive Summary

500.1  Locally Led Conservation Defined

500.2  Locally Led Leadership and Public Involvement

500.3  The Conservation Needs Assessment

500.4  The Conservation Action Plan

500.5  Implementing the Conservation Action Plan

500.6  Evaluating Results

Subpart B – Exhibits

500.10  NACD Guidance Document, “Locally Led Conservation:  An Overview for Conservation Districts”

500.11  NACD Guidance Document, “ Conservation District Board Member Recruitment”

500.0  Executive Summary

Locally led conservation consists of a series of phases that involve community stakeholders in natural resource planning, implementation of solutions, and evaluation of results.  Locally led conservation begins with the community itself, working through the local conservation district.  It is based on the principle that community stakeholders are best suited to deal with local resource problems.  Generally, the locally led process will involve the phases listed in figure 500-A1.

Figure 500-A1

Phase	Activity	Further Information
1.  Public Involvement and the Conservation Needs Assessment	The conservation district leads the effort to gather public input from a broad range of agencies, organizations, businesses, and individuals in the local area who have an interest in natural resource conditions and needs.  These community stakeholders evaluate natural resource conditions in a conservation needs assessment and establish broad conservation goals to meet those needs.	Section 500.3.
2.  Conservation Action Plan	The conservation district involves community stakeholders developing and agreeing on a conservation action plan that documents decisions and time schedules, identifies priorities, sets goals, and identifies Government and nongovernment programs to meet those needs.  Community stakeholders, under conservation district leadership, identify which Government and nongovernment programs are needed to address specific natural resource concerns. Note:  USDA conservation programs are just some of the many programs that can be used to satisfy the community's goals and needs.	Section 500.4.
3.  Implementation of the Conservation Action Plan	Community stakeholders, under conservation district leadership, obtain Government and nongovernment program resources and assist in implementing the programs that can satisfy the community's goals and needs, as identified in the action plan.	Section 500.5.
4.  Evaluation of the Conservation Action Plan	The effectiveness of plan implementation should be evaluated to ensure that the community stakeholders' planned goals and objectives are achieved.  An evaluation should be made to determine where the actual results differ from those anticipated.  The difference may result in retracing one or more of the steps in the locally led conservation effort.	Section 500.6.

500.1  Locally Led Conservation Defined

A.  Definition of Locally Led Conservation

(1)  Essentially, "locally led conservation" is community stakeholders performing all of the following:

(i)  Assessing their natural resource conservation needs

(ii)  Setting community conservation goals

(iii)  Developing an action plan

(iv)  Obtaining resources to carry out the plan

(v)  Implementing solutions

(vi)  Measuring their success

(2)  These actions have been grouped into four major activities for the purpose of this guidance:

(i)  Conservation needs assessment

(ii)  Conservation action plan

(iii)  Action plan implementation

(iv)  Evaluation of results

B.  The Locally Led Principle

Locally led conservation is based on the principle that community stakeholders are best suited to identify and resolve local natural resource problems.  Thus, community stakeholders are keys to successfully managing and protecting their natural resources.  It challenges neighbors, both urban and rural, to work together and take responsibility for addressing local resource needs.

C.  Definition of the Word “Local”

The word “local” can mean a county, a portion of a county, a watershed, a multicounty region, or whatever geographic area is best suited to address the resource conservation needs identified.  Local may also include specific sectors of a county, watershed, region, or community with common resource concerns.  This may include but is not limited to groups based on operational type (organic, specialty crop, etc.), groups based on operator type (limited-resource, family-owned farms, retirees, etc.), or groups based on other mutual resource concerns.

D.  Primary Focus: Resource Concerns

(1)  It is important to keep in mind that locally led conservation must be driven by natural resource conservation needs rather than by programs.  Its primary focus should be to identify natural resource concerns, along with related economic and social concerns.  Once the natural resource concerns are identified, appropriate Federal, State, local, and nongovernmental program tools can be used, both individually and in combination, to address these resource concerns and attempt to meet the established goals of the community stakeholders.

500.2  Locally Led Leadership and Public Involvement

A.  Locally Led Leadership

(1)  While there is a wide range of groups that may be in a position to lead a local conservation effort, conservation districts, under State or Tribal law, are charged with facilitating cooperation and agreements between agencies, landowners, and others; developing comprehensive conservation plans; and bringing those plans to the attention of landowners and others in their district. Thus, conservation districts are experienced in assessing resource needs, determining priorities, and coordinating programs to meet those needs and priorities.

(2)  Conservation districts are the logical group to coordinate locally led conservation due to their connections to Federal, State, Tribal, and local governments; private resources; and the public. Therefore, further discussion of the locally led effort presumes that districts will provide primary leadership; however, leadership can come from any willing and interested group.

(3)  Refer to section 500.10 for the National Association of Conservation Districts (NACD) guidance document, "Locally Led Conservation: An Overview for Conservation Districts."

B. Public Involvement

(1)  Input from a broad range of agencies, organizations, businesses, and individuals in the local area that have an interest in natural resource management and are familiar with local resource needs and conditions is an essential element of locally led conservation.  These representatives should reflect the diversity of the residents, landowners, and land operators in the local area.

(2)  The NACD documents "Locally Led Conservation: An Overview for Conservation Districts" and "Conservation District Board Member Recruitment and Community Outreach Guide" provide suggested guidelines for public outreach efforts and ways to reach out to underserved communities.

C. NRCS Role and Responsibilities

NRCS will support the locally led conservation effort by—

(i)  Providing assistance in identifying conservation needs.

(ii)  Providing technical and program advice to the community stakeholders throughout the effort.

(iii)  Assisting in developing and implementing strategies to include socially and economically disadvantaged groups in the locally led effort.

Note:  It is not the responsibility of the designated conservationist to lead the locally led effort. NRCS's task is to support the process and provide technical information upon request.

500.3  The Conservation Needs Assessment

A.  Introduction

A conservation needs assessment is the first step and a critical element of locally led conservation. With input and resource data from all interested parties, this assessment should provide a comprehensive evaluation of the condition of the area's natural resource base and will be the platform for making decisions about local priorities and policies for conservation programs delivered at the local level.

B.  Definition of a Conservation Needs Assessment

(1)  The conservation needs assessment is a comprehensive analysis of the work that needs to be done to achieve broad conservation goals set by community stakeholders and to solve natural resource problems. This assessment should be based on public input and science-based information. It should include a detailed analysis of natural resource concerns within the area.  To ensure versatility in all program areas, it is important that this needs assessment be resource-based, not program-based.

(2)  The conservation action plan that results from the conservation needs assessment will identify the tools that can be used to satisfy the needs.

C.  Purpose of the Conservation Needs Assessment

(1)  The purpose of the conservation needs assessment is to ensure that conservation efforts address the most important local resource needs.  The assessment will be the basis for selecting the type and extent of needed conservation systems and practices.  It will also be the basis for making recommendations on funding priorities and priority areas to be addressed by the various conservation programs available.

(2)  The conservation needs assessment is the foundation for carrying out Federal programs such as the USDA Environmental Quality Incentives Program (EQIP).  From a resource concern identification standpoint, this conservation needs assessment may also be used to assist localities in implementing the Clean Water Act, the Safe Drinking Water Act, the Endangered Species Act, as well as many State, Tribal, and local programs that provide assistance to private land owners and managers.

D.  NRCS Roles and Responsibilities

(1)  The NRCS designated conservationist will support, where requested, the development of the conservation needs assessment by—

(i)  Providing assistance in assembling natural resource inventories and data.

(ii)  Assisting in analyzing the data and other information.

(iii)  Providing information on socioeconomic factors involved in determining the conservation needs.

(2)  For specific guidance on resource assessment, consult steps one through four of the areawide planning process in the National Planning Procedures Handbook (NPPH).

500.4  The Conservation Action Plan

A.  Introduction and Identification of Leadership

Using the conservation needs assessment, the conservation district involves community stakeholders to develop and agree on an action plan, generally referred to as a “conservation action plan.”

B.  The Conservation Action Plan

This plan will—

(i)  Identify natural resource conservation priorities.

(ii)  Set measurable conservation goals and objectives.

(iii)  Identify conservation technology needed to achieve these goals and objectives.

(iv)  Identify responsibility for action and create a time schedule for completion of elements.

(v)  Identify Federal, State, Tribal, local, and nongovernment programs and services needed to address specific conservation needs.

(vi)  Identify a need to develop new programs or processes to address those problems not covered by existing programs.

C.  NRCS Roles and Responsibilities

(1)  The NRCS designated conservationist will support the development of the conservation action plan by—

(i)  Providing overall planning assistance.

(ii)  Identifying non-USDA programs that may be of assistance.

(iii)  Explaining appropriate USDA conservation programs and services.

(2)  For specific guidance on planning assistance, consult steps five through seven of the areawide planning process in the NPPH.

500.5  Implementing the Conservation Action Plan

A.  Introduction

(1)  Implementation of the conservation action plan means that the community stakeholders, with the leadership of the conservation district, obtain the needed programs and services to address the problems identified by their conservation needs assessment.

(2)  In this step, they coordinate existing assistance, available through private organizations, Federal, State, Tribal, and local agencies, including USDA; ensure that appropriate program application processes are followed; develop detailed proposals for new programs; and seek financial, educational, and technical assistance as necessary.

B.  NRCS Roles and Responsibilities

(1)  The NRCS designated conservationist will support the implementation of the conservation action plan by—

(i)  Explaining, interpreting, and clarifying USDA rules, regulations, and procedures.

(ii)  Providing input on other potential sources of assistance from Federal, State, Tribal, and local government or private sources.

(iii)  Implementing designated roles and responsibilities as defined in Part 502, “USDA Conservation Program Delivery.”

(2)  For specific guidance, see step eight of the areawide planning process in the NPPH.

500.6  Evaluating Results

A.  Introduction

Locally led conservation does not end when the conservation action plan has been implemented.  The effectiveness of plan implementation should be evaluated to ensure that the community stakeholders' planned goals and objectives are achieved.  An evaluation should be made to determine where the actual results differ from those anticipated.  This difference may result in retracing one or more of the steps in the locally led conservation effort.

B.  NRCS Roles and Responsibilities

(1)  The NRCS designated conservationist will support the conservation district and the community stakeholders in evaluating the results of their locally led conservation efforts by—

(i)  Assisting in the evaluation process.

(ii)  Providing updated natural resources information and assessments.

(iii)  Keeping them aware of changes in the USDA programs and the program delivery process.

(iv)  Assisting in interpreting the impact of conservation action plan implementation on the condition of the natural resources.

(2)  Refer to step nine of the areawide planning process in the NPPH for specific guidance.

 

500.10  NACD Guidance Document, “Locally Led Conservation:  An Overview for Conservation Districts”

      Click here for a copy of the Locally Led Conservation Document    

 
      500.11  NACD Guidance Document, “Conservation District Board Member Recruitment”

      Click here for a copy of the Conservation District Board Member Recruitment and Community Outreach Guide

Subpart A – USDA Conservation Program Delivery

501.0  Introduction

501.1  Conservation Program Delivery Process

Subpart B – Local Working Groups

501.10  Purpose

501.11  Responsibilities of the Local Working Group

501.12  Local Working Group Membership

501.13  Responsibilities of Conservation Districts and NRCS

501.14  Standard Operating Procedures for Local Working Groups

Subpart C – State Technical Committees

501.20  Purpose

501.21  Responsibilities of State Technical Committees

501.22  State Technical Committee Membership

501.23  Responsibilities of the State Conservationist

501.24  Specialized Subcommittees of State Technical Committees

501.25  Standard Operating Procedures for State Technical Committees

501.0  Introduction

A  The products of the locally led process specified in Title 440, Conservation Programs Manual, Part 500 provide USDA with conservation needs, resource concerns, priorities, and recommendations regarding program administration and implementation.  USDA seeks input from State Technical Committees and local working groups on State and local conservation program delivery.

B.  Although State Technical Committees and local working groups are advisory in nature and have no implementation or enforcement authority, USDA gives strong consideration to their recommendations.

C.  Each State Technical Committee and local working group may provide information, analysis, and recommendations for the following activities and programs, as needed and where applicable:

(1)  Agricultural Water Enhancement Program

(2)  Chesapeake Bay Watershed Program

(3)  Conservation compliance

(4)  Conservation Innovation Grants

(5)  Conservation Reserve Program

(6)  Conservation Security Program

(7)  Conservation Stewardship Program

(8)  Conservation of private grazing land

(9)  Cooperative Conservation Partnership Initiative

(10)  Environmental Quality Incentives Program

(11)  Farm and Ranch Lands Protection Program

(12)  Grassland Reserve Program

(13)  Grassroots Source Water Protection Program

(14)  Grazing Lands Conservation Initiative

(15)  Great Lakes Basin Program

(16)  Technical service providers

(17)  Voluntary Public Access and Habitat Incentive Program

(18)  Wetlands Reserve Program

(19)  Wildlife Habitat Incentive Program

(20)  Other programs and issues as requested by the State Conservationist or other USDA agency heads at the State level

D.  According to 16 U.S.C. Section 3862(d), these State Technical Committees and local working groups are exempt from the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2).

501.1  Conservation Program Delivery Process

A.  The conservation needs assessment and the conservation action plan developed during the locally led conservation effort form the basis for collaboration in carrying out the community stakeholder's priorities and identified programs, including USDA's conservation programs.

B.  When community stakeholders, working through conservation districts, have identified USDA programs as a tool to meet their conservation needs, USDA personnel and others, in the form of a USDA local working group, will review and submit recommendations on local and State conservation program delivery priorities and criteria.  Examples of recommendations that may be submitted are found in Figure 501-A1.

Figure 501-A1

Examples of Local Working Groups Recommendations Submitted to the Local Designated Conservationist	Examples of Local Working Group Recommendations Submitted to the State Technical Committee
Locally identified natural resource concerns, priorities, and opportunities	State or regional identified natural resource concerns, priorities, and opportunities
Local conservation program priorities	State  or regional conservation program priorities
Local program application screening and ranking criteria	State and national program policy changes
Local conservation practices offered in specific programs to address locally identified resource concerns (conservation practices must be included in the Field Office Technical Guide)	Revision or new interim conservation practices in the Field Office Technical Guide
Program payment percentages documented in practice payment schedules and/or maximum payment on conservation practices	Program payment percentages documented in practice payment schedules and maximum payment on conservation practices
	Levels of financial and technical support from available programs needed to address identified resource concerns
	Need for special initiatives focusing on priority resource concerns or areas

C.  Recommendations for local program delivery should be submitted to the local designated conservationist.  The local designated conservationist considers the recommendations from the local working group, along with technical expertise and national and State program policies, to develop the local NRCS conservation program available in the assigned geographic area.

D.  Recommendation for State program delivery should be submitted to the State Technical Committee.  The State Technical Committee considers the recommendations from the local working group to develop State conservation priorities and program delivery recommendations to the State Conservationist.

E.  The State Conservationist considers the recommendations from the State Technical Committee, along with technical expertise and national program policies, to develop the NRCS conservation program available in the State.

 

501.10  Purpose

In accordance with 7 CFR Part 610, Subpart C, local working groups are subcommittees of the State Technical Committee and provide recommendations to USDA on local and state natural resource priorities and criteria for conservation activities and programs.

501.11  Responsibilities of the Local Working Group

It is the responsibility of the local working group to –

(1)  Ensure that a conservation needs assessment is developed using community stakeholder input.

(2)  Utilize the conservation needs assessment to help identify program funding needs and conservation practices.

(3)  Identify priority resource concerns and identify, as appropriate, high-priority areas needing assistance.

(4)  Recommend USDA conservation program application and funding criteria, eligible practices (including limits on practice payments or units), and payment rates.

(5)  Participate in multicounty coordination where program funding and priority area proposals cross county boundaries.

(6)  Assist NRCS and the conservation district with public outreach and information efforts and identify educational and producers' training needs.

(7)  Recommend State and national program policy to the State Technical Committee based on resource data.

(8)  Utilize the conservation needs assessment to identify priority resource concerns that can be addressed by USDA programs.

(9)  Forward recommendations to the NRCS designated conservationist or Farm Service Agency (FSA) County Executive Director, as appropriate.

(10)  Adhere to standard operating procedures identified in Title 440, Conservation Programs Manual (CPM), Part 501, Subpart B, Section 501.14.

501.12  Local Working Group Membership

A.  Local working group membership should be diverse and focus on agricultural interests and natural resource issues existing in the local community.  Membership should include agricultural producers representing the variety of crops, livestock, and poultry raised within the local area; owners of nonindustrial private forest land, as appropriate; representatives of agricultural and environmental organizations; and representatives of governmental agencies carrying out agricultural and natural resource conservation programs and activities.

B.  Membership of the USDA local working group may include but is not limited to Federal, State, county, Tribal, or local government representatives.  Examples of potential members include—

(1)  NRCS designated conservationist.

(2)  Members of conservation district boards or equivalent.

(3)  Members of the county FSA committee.

(4)  FSA county executive director or designee.

(5)  Cooperative extension (board members or manager).

(6)  State or local elected or appointed officials.

(7)  Other Federal and State government representatives.

(8)  Representatives of American Indian and Alaskan Native governments.

C.  To ensure that recommendations of the local working group take into account the needs of diverse groups served by USDA, membership must include, to the extent practicable, individuals with demonstrated ability to represent the conservation and related technical concerns of particular historically underserved groups and individuals including but not limited to women, persons with disabilities, socially disadvantaged and limited resource groups.

D.  Individuals or groups wanting to become members of a local working group may submit a request that explains their interest and outlines their credentials for becoming a member of the local working group to the local working group chairperson and the NRCS district conservationist (or designated conservationist).  The district conservationist (or designated conservationist) will assist the soil and water conservation district in making decisions concerning membership of the group. 

501.13  Responsibilities of Conservation Districts and NRCS

A.  Conservation District

It is the responsibility of the conservation district to—

(i)  Develop the conservation needs assessment as outlined in 440-CPM, Part 500, Subpart A.

(ii)  Assemble the USDA local working group.

(iii)  Set the agenda.

(iv)  Conduct the USDA local working group meetings.

(v)  Transmit the USDA local working group's priority area and funding requests to the NRCS designated conservationist or the State Technical Committee, as appropriate.

Note:  Where a conservation district is not present or chooses not to fulfill the responsibilities outlined in 440-CPM, Part 501, Subpart A, Section 501.13, the NRCS designated conservationist will have these responsibilities.

B.  NRCS Designated Conservationist

It is the NRCS designated conservationist's responsibility to participate in the USDA local working group and to—

(i)  Encourage and assist other USDA agencies to participate in the locally led conservation and working group efforts, as feasible.

(ii)  Assist with identifying members for the local working group.

(iii)  Help identify program priorities and resources available.

(iv)  Assist in the development of program priority area proposals.

(v)  Comply with the National Environmental Policy Act, nondiscrimination statement, and other environmental, civil rights, and cultural resource requirements.

(vi)  Support and advise the local working group concerning technical issues, program policies and procedures, and other matters relating to conservation program delivery.

(vii)  Ensure that populations are—

·          Provided the opportunity to comment before decisions are rendered.

·          Allowed to share the benefits of, not excluded from, and not affected in a disproportionately high and adverse manner by Government programs and activities affecting human health or the environment.

(viii)  Analyze performance indicators and reports.

(ix)  Report the conservation programs' impacts on resources.

(x)  Perform the responsibilities of the conservation district where a conservation district is not present or chooses not to fulfill the responsibilities outlined in 440-CPM, Part 501, Subpart A, Section 501.6A.

(xi)  Give strong consideration to the local working group’s recommendations on NRCS programs, initiatives, and activities.

(xii)  Ensure that recommendations, when adopted, address natural resource concerns.

501.14  Standard Operating Procedures for Local Working Groups

A.  Organization and Function

Local working groups provide recommendations on local natural resource priorities and criteria for USDA conservation activities and programs.  Local working groups are normally chaired by the appropriate soil and water conservation district (SWCD).  In the event the SWCD is unable or unwilling to chair the local working group, NRCS district conservationist (or designated conservationist) is responsible for those duties.

B.  Meeting Scheduling

The local working group should meet at least once each year at a time and place designated by the chairperson, unless otherwise agreed to by the members of the local working group.  Other meetings may be held at the discretion of the chairperson.  Meetings will be called by the chairperson whenever there is business that should be brought before the local working group.

C.  Public Notification

(1)  Local working group meetings are open to the public and notification must be published in one or more newspapers, including recommended Tribal publications, to attain the appropriate circulation.

(2)  Public notice of local working group meetings should be provided at least 14 calendar days prior to the meeting.  Notification will need to exceed the 14-calendar-day minimum where State open meeting laws require a longer notification period.  The minimum 14-calendar-day notice requirement may be waived in the case of exceptional conditions, as determined by the chairperson or NRCS district conservationist (or designated conservationist).

(3)  The public notice of local working group meetings will include the time, place, and agenda items for the meeting.

D.  Meeting Information

Agendas and information must be provided to the local working group members at least 14 calendar days prior to the scheduled meeting.  The district conservationist (or designated conservationist) will assist the local working group chairperson, as requested, in preparing meeting agendas and necessary background information for meetings.  The minimum 14-calendar-day notice requirement may be waived in the case of exceptional conditions, as determined by the chairperson or NRCS district conservationist (or designated conservationist).

E.  Public Participation

Individuals attending the local working group meetings will be given the opportunity to address the local working group.  Opportunity to address nonagenda items will be provided if time allows at the end of the meeting.  Presenters are encouraged to provide written records of their comments to the chairperson at the time of the presentation, but are not required to do so.  Written comments may be accepted if provided to the chairperson no later than 14 calendar days after a meeting.

F.  Conducting Business

(1)  The meetings will be conducted as an open discussion among members.  Discussion will focus on identifying local natural resource concerns that can be treated using programs and activities identified in 440-CPM, Part 501, Subpart A, Section 501.0C.  All recommendations will be considered.

(2)  The following guidelines will govern meeting discussions:

(i)  The chairperson will lead the discussion.

(ii)  Only one person may speak at a time.  Every participant should have an opportunity to speak.  The chairperson or his or her designee is responsible for recognizing speakers.

(iii)  The chairperson, in consultation with those members present, may establish time limits for discussion on individual agenda items.

(iv)  State Technical Committees are advisory in nature and all recommendations are considered.

(v)  Members may be polled, but voting on issues is not appropriate.

(vi)  The chairperson will defer those agenda items not covered because of time limits to the next meeting.

G.  Record of Meetings

Summaries for all local working group meetings will be available within 30 calendar days of the meeting and will be filed at the appropriate local NRCS office.

H.  Input to State Technical Committee

Local working group recommendations are to be submitted to State Technical Committee chairperson, the district conservationist (or designated conservationist), or both (as appropriate) within 14 calendar days after a meeting.

I.  Response to Local Working Group Recommendations

The designated conservationist will inform the local working group as to the decisions made in response to all local working group recommendations within 90 days.  This notification will be made in writing to all local working groups members and made available for the public at the appropriate local NRCS office. 

 

501.20  Purpose

In accordance with 7 CFR Part 610, Subpart C, NRCS has established a technical committee in each State to assist in making recommendations relating to the implementation and technical aspects of natural resource conservation activities and programs.

501.21  Responsibilities of State Technical Committees

It is the responsibility of the State Technical Committee to –

(1)  Provide information, analysis, and recommendations to USDA on conservation priorities and criteria for natural resources conservation activities and programs, including application and funding criteria, recommended practices, and program payment percentages.

(2)  Identify emerging natural resource concerns and program needs.

(3)  Recommend conservation practice standards and specifications.

(4)  Recommend State and national program policy based on resource data.

(5)  Review activities of the local working groups to ensure State priorities are being addressed locally.

(6)  Make recommendations to the State Conservationist on requests and recommendations from local working groups.

(7)  Assist NRCS with public outreach and information efforts and identify educational and producers’ training needs.

501.22  State Technical Committee Membership

A.  Each State Technical Committee will be composed of agricultural producers, owners and operators of nonindustrial private forest land, and other professionals who represent a variety of interests and disciplines in the soil, water, wetlands, plant, and wildlife sciences.

B.  Each State Technical Committee must include representatives from all of the following:

(1)  NRCS

(2)  Farm Service Agency (FSA)

(3)  FSA State Committee

(4)  U.S. Forest Service

(5)  National Institute of Food and Agriculture (formerly the Cooperative State Research Education and Extension Service)

(6)  Each of the federally recognized American Indian Tribal governments and Alaskan Native Corporations encompassing 100,000 acres or more in the State

(7)  Association of Soil and Water Conservation Districts

(8)  State departments and agencies within the State, including the following:

(i)  Agricultural agency

(ii)  Fish and wildlife agency

(iii)  Forestry agency

(iv)  Soil and water conservation agency

(v)  Water resources agency

(9)  Agricultural producers representing the variety of crops and livestock or poultry raised within the State

(10)  Owners of nonindustrial private forest land

(11)  Nonprofit organizations (as defined under section 501(c)(3) of the Internal Revenue Code of 1986) that demonstrate conservation expertise and experience working with agricultural producers in the State

(12)  Agribusiness

(13)  Other Federal agencies and persons knowledgeable about economic and environmental impacts of conservation techniques and programs as determined by the State Conservationist.

C.  To ensure that recommendations of the State Technical Committee take into account the needs of diverse groups served by USDA, membership will include, to the extent practicable, individuals with demonstrated ability to represent the conservation and related technical concerns of particular historically underserved groups and individuals including but not limited to women, persons with disabilities, and socially disadvantaged and limited-resource groups.

D.  Individuals or groups wanting to become members of a State Technical Committee within a specific State may submit a request that explains their interest and outlines their credentials for becoming a member to the State Conservationist.  The State Conservationist will respond to requests for State Technical Committee membership in writing within a reasonable period of time, not to exceed 60 days.  Decisions of the State Conservationist concerning membership on the committee are final and not appealable.  State Technical Committee membership will be posted on the NRCS State Web site.

501.23  Responsibilities of the State Conservationist

The State Conservationist will—

(1)  Chair the committee.

(2)  Ensure representation of all interests, to the extent practicable.

(3)  Give strong consideration to the committee’s advice on NRCS programs, initiatives, and activities.

(4)  Call and provide notice of public meetings.

(5)  Follow the standard operating procedures.

(6)  Provide other USDA agencies with recommendations from the State Technical Committee for programs under their purview.

(7)  Ensure that recommendations, when adopted, address natural resource concerns.

(8)  Extend membership to any agency or persons knowledgeable about economic and environmental impacts of conservation techniques and programs.

(9)  Respond to requests for membership at outlined in Title 440, Conservation Programs Manual (CPM), Part 501, Subpart C, Section 501.22D. 

501.24  Specialized Subcommittees of State Technical Committees

A.  Introduction

In some situations, specialized subcommittees composed of State Technical Committee members may be needed to analyze and refine specific issues.  The State Conservationist may assemble certain committee members, including members of local working groups and other experts to discuss, examine, and focus on a particular technical or programmatic topic, or combination of such.

B.  Public Involvement

Specialized subcommittees are open to the public and may seek public participation, but they are not required to do so.  Recommendations of specialized subcommittees will be presented in general sessions of State Technical Committees, where the public is notified and invited to attend.

C.  Examples of Specialized Subcommittees

Figure 501-C1 provides examples of specialized subcommittees.

Figure 501-C1

Examples of Specialized Subcommittees	Program or Topic	Task
Environmental Quality Incentives Program  Ranking Criteria Subcommittee	Environmental Quality Incentives Program	Provide input to develop State ranking criteria and make recommendations to the State Technical Committee.
State Forestry Subcommittee	All programs	Provide recommendations to the State Technical Committee on forestry conservation practices and payment rates to be supported in conservation programs.
Conservation Easement Geographic Rate Subcommittee	Wetlands Reserve Program and Grassland Reserve Program	Develop recommendations for the geographic area rate cap and present it to the State Technical Committee.
Payment Schedule Subcommittee	Financial assistance programs	Provide recommendations for practices and program payment percentages for conservation programs that support program objectives and State and local priorities.
State Wildlife Subcommittee	Wildlife Habitat Incentive Program (WHIP)	Provide recommendations (to the State Technical Committee) for the State WHIP plan that incorporates priorities of the State comprehensive wildlife action plan and similar plans and initiatives.
Priority Watershed Subcommittee	Chesapeake Bay Watershed Program	Recommend priority watersheds for focusing funding for effective use of available resources.

501.25  Standard Operating Procedures for State Technical Committees

A.  Organization and Function

The State Conservationist chairs the State Technical Committee.  State Technical Committees are used to provide information, analysis, and recommendations to NRCS and other USDA agencies responsible for natural resource conservation activities and programs under title XII of the Food and Security Act of 1985, as amended.

B.  Meeting Scheduling

The State Technical Committee should meet at least twice a year at a time and place designated by the State Conservationist.  Other meetings may be held at the discretion of the State Conservationist.  The State Conservationist will call a meeting whenever he or she believes that there is business that should be brought before the committee for action.  However, any USDA agency may make a request of the State Conservationist for a meeting.

C.  Public Notification

(1)  State Technical Committee and subcommittee meetings are open to the public.  The State Conservationist must provide public notice of and allow public attendance at all State Technical Committee meetings.

(2)  The State Conservationist must publish a meeting notice at least 14 calendar days prior to the meeting.  Notification may exceed the 14-calendar-day minimum where State open meeting laws exist and require a longer notification period.  The minimum 14-calendar-day notice requirement may be waived in the case of exceptional conditions, as determined by the State Conservationist. 

(3)  The State Conservationist will publish this meeting notice in one or more widely available newspapers, including recommended Tribal publications, to achieve statewide and Tribal notification.  The meeting notice will also be posted to the NRCS State Web site.

(4)  The meeting notice will include meeting time, location, agenda items, and point of contact.

D.  Meeting Information

(1)  The State Conservationist must prepare a meeting agenda and provide it to the committee members at least 14 calendar days prior to a scheduled meeting.  Additional background materials may be provided before the meeting at the discretion of the State Conservationist.  The minimum 14-calendar-day requirement may be waived in the case of exceptional conditions, as determined by the State Conservationist.  Additional agenda items will be considered if submitted in writing to the State Conservationist at least 5 working days prior to the meeting. 

(2)  The State Conservationist may amend the agenda prior to the meeting without notice to the State Technical Committee or at the meeting based on suggestions from participating members.  The agenda will be posted to the NRCS State Web site.

E.  Public Participation

(1)  Individuals attending State Technical Committee meetings will be given the opportunity to address the committee and present their opinions and recommendations.  While presenters are encouraged to provide written copies of their comments, they are not required to do so.  State Conservationists are encouraged to request written comments on agenda items from all members of the State Technical Committee whether they are in attendance at the meeting or not.

(2)  Subsequent to the meeting, if the State Conservationist determines that additional comments and recommendations are needed on specific topics, the State Conservationist will mail a request for written comments to all members of the State Technical Committee within 7 calendar days of the meeting.  The letter will fully explain the nature of the request for information and provide at least 14 calendar days for a response.

(3)  Comments received will be summarized and presented at the next State Technical Committee meeting and will be directly posted on the NRCS State Web site.

(4)  If time allows, opportunity to discuss nonagenda items will be provided at the end of the meeting.

F.  Conducting Business

(1)  The meetings will be conducted as an open discussion among members.  Discussion will focus on the programs and activities identified in 440-CPM, Part 501, Subpart A, Section 501.0C.  All recommendations will be considered.

(2)  The following guidelines will govern meeting discussions:

(i)  The State Conservationist or his or her designee will lead the discussion.

(ii)  Only one person may speak at a time.  Every participant should have an opportunity to speak.

(iii)  The State Conservationist or his or her designee is responsible for recognizing speakers.

(iv)  State Technical Committees are advisory in nature and all recommendations are considered.

(v)  Members may be polled, but voting on issues is not appropriate.

(vi)  The State Conservationist, in consultation with those members present, may establish time limits for discussion on individual agenda items.

(vii)  The State Conservationist will defer those agenda items not covered because of time limits to the next meeting.

G.  Record of Meetings

Summaries for all State Technical Committee meetings must be available within 30 calendar days of the committee meeting and distributed to committee members.  The summaries must be filed at the appropriate NRCS State office and posted to the NRCS State Web site.

H.  Response to State Technical Committee Recommendations

The State Conservationist must inform the State Technical Committee as to the decisions made in response to all State Technical Committee recommendations within 90 days.  This notification must be made in writing to all State Technical Committee members and posted to the NRCS State Web site. 

 

 

510.0  Administration of Appeals and Organization

A.  National Appeals Staff within NRCS

(1)  Appeals are administrated under the Strategic Planning Accountability (SPA), Compliance Division.  Staff at National Headquarters (NHQ) includes a national appeals and equitable relief specialist, an equitable relief specialist, and a paralegal.  NHQ assists with the monitoring and coordinating of all administrative appeal activities nationwide including development of policy, directives, and guidance; drafting of director review determinations and reconsideration requests; and the representation of NRCS at NAD prehearings and hearings.  NHQ also assists the Office of General Counsel (OGC) and the Department of Justice (DOJ) with administrative appeals and litigation involving NRCS and other USDA agencies in which NRCS has an interest.  NHQ provides guidance and training to NRCS State offices on appeal cases, Equal Access to Justice Act (EAJA) cases, equitable relief, mediation, and litigation matters.

(2)  National Appeals Cadre (NAC) provides assistance towards the appeals workload.  The NAC is composed of NRCS employees nationwide with appeals and mediation expertise and experience specific to NRCS programs and technical determinations.  Cadre members serve in collateral duty assignments with assistance provided at the overall discretion of the State Conservationist.  The State requesting a cadre member’s assistance is responsible for negotiating the use of their services and payment of any appropriate reimbursements with the supervising State Conservationist.  Cadre members provide direct assistance to the States on appeals, EAJA, mediation, and equitable relief, and offer training assistance.  The national appeals and equitable relief specialist is available to consult with cadre members when a situation exceeds the cadre member’s level of expertise.  Additionally, all appeals documents being submitted to the National Appeals Division (NAD) for the Chief’s signature (including requests for director review under 7 CFR Section 11.9 and request for director reconsideration under 7 CFR Section 11.11) will be drafted  by the NAC member and reviewed and finalized by NHQ.  The State appeals coordinator or agency representative should request assistance from cadre members within the appropriate region unless the expertise needed is available only from another region.  Contacts for assistance should be made as early as possible in the appeals process in order for the state to receive timely assistance. 

B.  State Appeals Contact (SAC)

(1)  Each State office will designate at least one employee as the SAC who will be responsible for—

(i)  Ensuring NRCS’s interests in the appeal are properly and adequately represented.

(ii)  Protecting the integrity of NRCS’s programs in all administrative appeal proceedings.

(iii)  Assigning, as appropriate, appeal cases to an NRCS employee for administration.

(iv)  Tracking appeal information in a national database and responding to national inquiries concerning appeals.

(v)  Assisting, to the extent necessary, the employee assigned the case, assembling and preparing the agency record, agency narrative statement, or both.

(vi)  Coordinating appeal activities with agency representative.

(vii)  Monitoring receipt and implementation of final NAD determinations ensuring all NAD determinations are properly and timely implemented.

(viii)  Reviewing and distributing, as appropriate, copies of NAD appeal summaries that are issued by NHQ.

(ix)  Working, and consulting, with NHQ on program issues relating to a specific case, including guidance on national policy and procedure, and, as appropriate, authority to resolve a case.

(x)  The State Conservationist must provide electronic notification to NHQ staff within the Compliance Division of the SAC’s name and contact information.

(2)  The NRCS Appeal Representative Duties

The employees designated or appointed as the NRCS representatives for an appeal are responsible for—

• Ensuring NRCS’s interests in the appeal are properly and adequately represented.
• Protecting the integrity of NRCS’s programs in all administrative appeal proceedings.
• Preparing and assembling NRCS’s agency record by making sure that all relevant and pertinent documents, program operating guidelines, and applicable regulations are included.
• Ensuring all appeal administrative actions and deadlines are met as provided in Federal regulations and policy or as directed by NAD.
• Submitting documents as requested to a USDA agency (for example, the Farm Service Agency), mediator or NAD hearing officer; reviewing and providing copies to the agency representative, appellant, and third parties, as applicable.
• Preparing for the informal or formal hearing including the evaluation of the adverse decision being appealed.  Representatives should be prepared to competently defend any adverse decision appealed by a program participant or applicant and cite the statutory and regulatory authority.
• Communicating the basis (factual basis and policy and regulation basis) for each adverse decision.
• Communicating the procedure by which a program applicant or participant can obtain their USDA administrative appeal rights.
• Understanding the uses of mediation as a tool for potentially resolving an adverse decision (limits and benefits).
• Knowing when and how to use the waivers, exemptions, variances, and equitable relief provisions of the various programs.
• Appearing at the NAD in-person hearing as agency’s authorized representative or participating in a teleconference hearing.
• Reviewing the agency or NAD determinations for appropriate action.
• Coordinating appeal activities with SAC.
• Working with SAC in consulting with NHQ on program issues relating to a specific case, including guidance on national policy and procedure, and, as appropriate, authority to resolve a case.
• Ensuring NAD determinations are properly and timely implemented.

510.10  General Information

A.  What is an Appeal?

An appeal is a written request by a participant requesting a review of an adverse NRCS technical determination or program decision (7 CFR Section 614.2).  A request for mediation is considered an appeal.  The appeal request must be made in writing and sets out the reasons for the appeal and includes any supporting documentation.  The appeal is considered filed when the participant’s request is receipted by the accepting official as indicated in the adverse decision notice. 

B.  Who May Appeal?

USDA program participants, including third parties, who are directly and adversely affected by an NRCS technical determination or program decision made by officials of NRCS may file an appeal.  A participant is any individual or entity who has applied for, or whose right to participate in, or receive, a payment or other benefit in accordance with any program administered by NRCS.  The term does not include those individuals or entities excluded in the definition of participant published at 7 CFR Section 11.1. 

C.  What is an Adverse Decision?

An adverse decision is an administrative decision made by an officer, employee, or committee of NRCS that is adverse to the individual participant and not a matter of general applicability.  Adverse decisions are subject to the National Appeals Division’s (NAD’s) jurisdiction and judicial review.

D.  Sources of Authority for Appeals

The legislation and regulations authorizing the policy and procedures contained within are in figure 510-B1.

Figure 510-B1

Description	Source of Authority
The Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Title II	7 U.S.C. Section 6995 et seq. Public Law 103-354
The Agricultural Credit Act of 1987, Title 5	7 U.S.C. Section 5101 et seq.
The Administrative Dispute Resolution Act of 1996	Public Law 104-320
National Appeals Division (NAD) Rules of Procedure, Final Rule, 64 FR 33367, June 23, 1999, and Notification of Modified Privacy Act, 69 FR 57254, September 24, 2004	7 CFR Part 11
Natural Resources Conservation Service (NRCS) Appeals Procedures, Final Rule, 71 FR 28239, June 11, 2012	7 CFR Part 614
Farm Service Agency (FSA) Appeals Regulation, Final Rule, 71 FR 30568, May 30, 2006, and 70 FR 43262, July 27, 2005	7 CFR Part 780

Note:  The references are current as of August 20, 2010, and are subject to change.

E.  Specific Sources of Authority for Conservation Programs

The procedures within this section apply to title XII and non-title-XII programs.  Figure 510-B2 provides specific conservation program sources of appeal authority.

Figure 510-B2

Conservation Program	Source of Authority
Agriculture Management Assistance Program (AMA)	7 U.S.C. Section 1524(b); 7 U.S.C. Section  2501; 16 U.S.C. Section 3801; 7 CFR Part 1465; Final Rule, 74 F.R. 64591, December 8, 2009
Conservation Reserve Program (CRP) and Conservation Reserve Enhancement Program (CREP) (administered by the USDA-Farm Service Agency in partnership with NRCS)	15 U.S.C. Sections 714(b) and 714(c); 16 U.S.C. Sections 3801-3847; 7 CFR Section 1410; 68 FR 24835, May 8, 2003, as amended 69 FR 26763, May 14, 2004
Conservation Security Program (CSP)	16 U.S.C. Section 3830 et seq. 7 CFR Part 1469, Interim Final Rule, 70 FR 15201, March 25, 2005
Conservation Stewardship Program (CSP)	16 U.S.C. Section 3838 et seq.7 CFR Section 1470, Final Rule, 70 FR 31609, June 3, 2010
Conservation Technical Assistance	7 CFR Part 610
Emergency Wetlands Reserve Program (EWRP)	16 U.S.C. Sections 3837-3837f 7 CFR Part 623, 58 FR 62497, November 29, 1993
Environmental Quality Incentives Program (EQIP)	16 U.S.C. Sections 3839aa-3839aa(8)7 CFR Part 1466, Interim Final Rule, 74 FR 2308,  January 15, 2009
Farm and Ranch Lands Protection Program (FRPP)	7 U.S.C. Sections 3838(h)-3838(i); 7 CFR Part 1491; Final Rule, 74 FR 2809, January 16, 2009
Grassland Reserve Program (GRP)	16 U.S.C. Sections 3838n-3838q; 7 CFR Part 1415; Final Rule, 74 FR 3856, January 21, 2009
Healthy Forest Reserve Program	16 U.S.C. Sections 6571-6578; 7 CFR Part 625, Final Rule, 75 FR 6539, February 10, 2010
Highly Erodible Land and Wetland Conservation (HELC/WC)	16 U.S.C. Section 3801 et seq.; 7 CFR Part 12, Sept 6, 1996
Watershed Protection and Flood Prevention Program	16 U.S.C. 1001 et seq.; 33 U.S.C. 701b-1; 7 CFR Part 622, 49 FR 6078, February 17, 1984
Wetlands Reserve Program (WRP)	16 U.S.C. Section 3837, et seq.; 7 CFR Part 1467, Interim Final Rule, 74 FR 2317, January 15, 2009
Wildlife Habitat Incentives Program (WHIP)	16 U.S.C. Section 3839(bb-1); 7 CFR Part 636; Interim Final Rule, 74 FR 2786, January 16, 2009

Note:  The references are current as of August 20, 2010, and are subject to change.

F.  Decision Categories

The types of decisions may be technical or programmatic:

(i)  Technical determinations (7 CFR Section 614.2).  See Subpart C, “Preliminary and Final Technical Determinations.”

• Preliminary technical determinations
• Final technical determinations

(ii)  Program decision (7 CFR Section 614.2).  See Subpart D, “Program Decisions”

G.  Types of Appeals

(1)  Informal Appeals

The goal of the informal appeals process is to maximize opportunity for resolution of factual disputes between participants and NRCS at the lowest possible level within the agency.  The informal appeals process provides opportunity for review by persons or committees with detailed knowledge of natural resources or NRCS programs, knowledge of farming and ranching operations, and expertise in farm and ranch management.  This is in contrast to appeals administered by NAD under rules at 7 CFR Part 11.  While participants have the option to seek review at NAD, typically more difficult and complex unresolved disputes proceed to further appeals before NAD.  Types of informal appeals include—

• A field visit, office visit, or other designated location meeting site and reconsideration of a preliminary technical determination by the designated conservationist at the local level (7 CFR Section 614.7(b)(1)).
• Mediation or other forms of alternative dispute resolution of technical determinations or program decisions (7 CFR Sections 614.7(a)(2) and 614.9(b)(2) respectively).
• An informal hearing before NRCS about programmatic decisions (7 CFR Section 614.9(a)(1)).
• Informal appeal to the FSA county committee (COC) on final technical determinations and program decisions (7 CFR Sections 614.8(b)(1) and 614.9(a)(3)).

(2)  Formal Appeals

NAD hears formal appeals on final technical determinations and program decisions (7 CFR Sections 614.8(b)(2) and 614.9(a)(4)).  NAD conducts hearings to afford a participant the opportunity to present testimony or documentary evidence or both in order to have a previous determination or decision reversed and demonstrate why an adverse decision was in error.  A NAD hearing is held and conducted within the agency’s authority defined at 7 CFR Part 11.  (See the NAD Hearing Guide NAD Hearing Officer’s Guide.)

H.  Waiver of Preliminary Technical Determination Reconsideration and Review Rights (7 CFR Section 614.7(d))

In order to immediately address application needs or resource issues on the ground, a participant who has received a preliminary technical determination may waive his or her preliminary reconsideration and field review rights in order to obtain expedited finality of the technical determination.  The participant must request the waiver in writing to the State Conservationist (STC).  Upon waiver request review, the STC will issue a final technical determination, as appropriate.

I.  Mediation Option Must Be Offered (7 CFR Section 614.11)

Any USDA program participant that receives an adverse preliminary technical determination or program decision from NRCS must be provided the option to mediate. This authority is set forth in the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (Public Law 103-354; 7 U.S.C. Section 6995 et seq.), and 7 CFR Part 614.

510.11  General Rules

A.  Appealable Issues (7 CFR Section 614.3)

Participants may request an appealability review or an appeal of technical determinations or program decisions with respect to conservation programs and regulatory requirements concerning any of the following issues:

(i)  Denial of participation in a program

(ii)  Compliance with program requirements

(iii)  Issuance of payments or other program benefits to a program participant

(iv)  Technical determinations made under HELC/WC provisions

(v)  Technical determinations that affect program participation or benefits

(vi)  The failure of an official of NRCS to issue a technical determination or program decision

(vii)  All matters relating to correctly applying regulations pertinent to an issue of fact

B.  Nonappealable Issues (7 CFR Section 614.4)

(1)  Generally, only technical determination and program decisions issued in response to a particular request for technical assistance, resulting from compliance or contract reviews, specific agreements, or similar instruments are subject to appeal, mediation, or appeal.  The following issues are not appealable:

(i)  Any general program provisions or program policy or any statutory or regulatory requirement that is applicable to similarly situated participants; examples include program application ranking criteria, program application screening criteria, published soil surveys, or conservation practice technical standards included in the local Field Office Technical Guide (FOTG) or electronic FOTG (eFOTG)

(ii)  Mathematical or science-based formulas established under statute or program regulation and program decision or technical determination based solely on the application of those formulas

(iii)  Decisions made in accordance with statutes that expressly make program decisions or technical determinations final or their implementing regulations

(iv)  Decisions issued by another Federal or State agency

(v)  Disapproval or denials of assistance due to lack of agency funding or lack of agency authority

(vi)  Decisions based on technical information provided by another Federal or State agency (e.g., lists of endangered and threatened species)

(vii)  Corrections by NRCS of errors in data entered on program contracts, easement documents, loan agreements, and other program documents

(viii)  The fairness or constitutionality of Federal laws

(ix)  Decisions based on requirements and conditions of an easement

(x)  Issues of discrimination

(2)  Paragraph (1) describes issues that are not appealable.  Decisions involving cases that do not have any disputes of fact are not appealable.  Participants have the right to appeal when there is a question of fact or when there is some dispute as to the correct application of a rule, regulation, or generally applicable provision.  However, participants may not appeal the rules, regulations, or generally applicable provisions themselves. 

(3)  Letters notifying participants that a decision is not appealable must clearly explain to the participant the reasons the decision is not appealable.  Avoid using general or vague statements that do not sufficiently demonstrate the reasons that the decision is not appealable.  After fully explaining the adverse decision according to policy in this part and the reasons why the facts in the case are not in dispute, include the following language in the adverse decision:

“NRCS has determined that the issue is not appealable.  You may seek a review of this determination by filing with the National Appeals Division (NAD) director a written request no later than 30 calendar days after the date you receive this notice in accordance with the NRCS appeal procedures found at 7 CFR Part 614 and the NAD appeal procedures found at 7 CFR Part 11.  If you believe that this issue is appealable, you must write to the NAD director at the applicable address shown and explain why you believe this determination is appealable.  If you seek an appealability review with the NAD director, provide NRCS a copy of your request.  [Insert NAD addresses.]”

(4)  Any participant who receives a nonappealable determination may request an appealability review of the NAD director.

C.  Appealability Reviews (7 CFR Section 614.13)

A request must be filed not later than 30 calendar days after notification that an issue is not appealable.  The NAD director or designee will determine whether the issue is adverse to the participant, and thus appealable, or is a matter of general applicability and not appealable.  The NAD director's determination is final and not subject to review.

D.  Issues Not Subject to This Policy (7 CFR Sections 614.4 (b) and (c) and 7 CFR Section 11.1)

The following issues are not subject to the policy contained in this part:

(i)  Appeals of contractual issues subject to the jurisdiction of the Agriculture Board of Contract Appeals.  (The Board of Contract Appeals is a separate USDA entity that adjudicates contract issues related to procurement, service, and rental agreements.)

(ii)  Complaints resulting from program delivery discrimination subject to USDA civil rights rules and regulations.

(iii)  Complaints from persons not associated with the farm (such as neighbors who claim offsite impacts) that are handled through the USDA whistleblower procedures.

E.  Witness Testimony

When appropriate, agency employees may be requested by the appellant to serve as witness.  These employees will generally be made available for appeal hearings. Witnesses may also be required to attend a proceeding as a witness by subpoena if the agency determines the requested witness will not testify at a NAD hearing.  Employees who receive a request to testify at an appeal hearing or are subpoenaed must immediately notify their supervisor and the STC or designee.  The employee may not provide any statements to the NAD hearing officer or the appellant without the prior knowledge and consent of the STC.

F.  Authority of the Chief (7 CFR Section 614.5)

The Chief of NRCS or a designee has the authority to make or modify any decision or determination for any of the programs that NRCS administers.  The Chief may also revise or modify in writing, with sufficient reason given, any program decision or technical determination made by an NRCS official.

G.  Reopening Appealed Decisions or Determinations

(1)  A reopening of a case will not be considered if the matter has been appealed to, or is being considered by, a higher reviewing authority.

(2)  Cases may be reopened by the State Conservationist at the appellant’s request to accept additional evidence not privy towards the previous review. 

(3)  If warranted, a new, corrected determination or technical decision will be issued.  The notification must either rescind or amend the previous decision or determination and provide the basis for such action. (See Section 510.13, “Notification.”)

Note:  Do not use this process to accept and allow appeals of technical determinations or program decisions in which the request was not receipted within the specified period.  This authority is provided solely to allow the STC the discretion to reopen a case after an informal hearing if the evidence presented by NRCS, the appellant, or a third party warrants further review.

H.  Civil Rights Program Delivery or Discrimination Complaint or Bankruptcy Involved

(1)  NRCS will notify persons of their right to file a program discrimination complaint with the Civil Rights Division, NRCS, if it becomes apparent that discrimination has occurred.

(2)  The Civil Rights Division will be notified of any potential civil rights complaint that arises due to the appeal review process.

Note:  The agency will receive direction from NAD regarding implementation of NAD decisions that are adverse to a participant while a related discrimination complaint or bankruptcy by the same individual is pending.  NAD procedures provide NAD will continue an appeal if appellant has a pending discrimination complaint; however, NAD will dismiss an appeal from an appellant in bankruptcy with leave to refile.  NAD regulations require NRCS to implement NAD’s final decisions not later than 30 days after the effective date of the notice of the final determination (see 7 CFR Section 11.12(a)).

510.12  Agency Record (7 CFR Section 614.6(a))

A.  Definition

The term “agency record” means all documents and materials, including documents submitted by the participant and those generated by the agency, that were relied upon to make the adverse determination or decision.  The agency record contains all materials related to an appeal.  It should be prepared when the appeal request is made.  It should be prepared and assembled assuming that those reviewing the record have no prior knowledge of the case or procedure governing the case. 

B.  Required Content

(1)  The agency record must contain the following:

(i)  Appeal summary (See Subpart G, Section 510.62, Exhibit 10, “Summary Outline for an Appeal”)

(ii)  Chronology of events specific to determination or decision that is under appeal, issues considered, or both

(iii)  The technical determination or program decision under appeal

(iv)  All materials included in the agency record that provide findings of fact for the issues under appeal

(v)  All materials relied upon in issuing the technical determination or program decision

(2)  This could include numerous items, depending on the scope of the adverse decision. Please refer the checklist that can be developed to help identify the documentation required to place in the agency record and to indicate which documents have been included. (See subpart G, section 510.62, exhibit 2.)

C.  Agency Record Organization

(1)  Materials included in the agency record may be organized using an exhibit-based format, as shown in subpart G, section 510.61, exhibit 1.

(2)  NAD procedure requires that all materials submitted as the agency record be organized, marked numerically in the lower right hand corner of the document, easy to find, follow, and use during the hearing.  (See section 510.52D for labeling requirements.  Also see the NAD Hearing Officer’s Guide.)

D.  Record Maintenance

NRCS will always maintain the original copy of the agency record, including all original documents.  All copies of documents must—

(i)  Be completely legible.

(ii)  Contain all the required signatures, dates, and pages.

(iii)  Show both sides of all two-sided documents, regardless of the nature of the information on the back, including contracts, appendices, etc.  The agency record documents should be one-sided (8½ inches by 11 inches) whenever possible. 

E.  Record Transmission

(1)  Each NRCS office must ensure that a complete copy of the agency record is transmitted, as applicable, to all appropriate parties.

(i)  The appellant and any authorized representatives

(ii)  The agency, group, or individual conducting the appeal

(iii)  Potential third parties whose interests might be adjudicated by the appeal decision

Note:  The agency record must be furnished to all parties to the appeal at no charge.  Furthermore, charges are not to be made for photocopying, reprinting of FSA compliance slides, or similar reproduction costs associated with providing the agency record in an appeal.

(2)  The State office must maintain all original materials in the agency record for all appeals, including all records and correspondence associated with a specific appeal. File and maintain these records in accordance with the Records Guide, Title 120, General Manual, Part 408.  Appeal records must be retained for a minimum of 5 years.

510.13  Notification (7 CFR Section 614.6(b))

A.  Decision Notices

Generally, to minimize confusion on the part of participants, NRCS will not issue letters that provide participants opportunity to challenge, seek reconsideration, or appeal favorable decisions.  NRCS is required by law and regulation to notify participants of adverse decisions and their appeal rights. 

B.  Decision Notice Content

(1)  The notification letter should use plain and simple language and terminology, with an explanation of acronyms and abbreviations that participants and others can easily understand.  Notification should contain as much information as possible summarizing all pertinent information and program provisions that are relevant to the determination.  A good notification letter adequately summarizes and explains the facts of a case and requires little additional information to explain what is at issue in an agency determination or decision.  The notification letter is the starting point for the next administrative review authority.

(2)  Notification letters must contain the following: 

(i)  A background or brief narrative explaining the reason for the letter. 

(ii)  NRCS finding of facts that provide the basis for the technical determination or program decision.  These include the pertinent facts based on evidence that is specific to the determination, decision or issue considered in making the decision.

(iii)  The regulatory, statutory, or policy basis for the technical determination or program decision and how the facts or findings relate to the information cited.

(iv)  NRCS’s decision based on the facts applied to the general program provision.

(v)  The information regarding any informal appeal rights applicable to the determination or decision, the process for requesting an informal appeal, and the procedure for requesting further review before the FSA COC or NAD.  The following options must be provided in each notification letter specific to the determination or decision:

• For Preliminary Technical Determinations

--  “You may request that the [insert district conservationist or designated conservationist, as applicable] reconsider this determination by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NRCS’s appeal procedures found at 7 CFR Part 614. If you request reconsideration, you have the right to a field visit, office visit, or other designated location meeting site for an informal review with the decisionmaker.  During the review you or your representative may provide additional information and discuss the facts relating to the preliminary technical determination.  If you choose to seek reconsideration, you may appeal the determination to the FSA county committee (COC) or the National Appeals Division (NAD).  To request reconsideration, write to the [insert district conservationist or designated conservationist, as applicable] at the following address and explain why you believe this determination is erroneous.  [Insert address]”

--  “Mediation is available as part of NRCS’s informal appeal process.  Mediation may enable NRCS to narrow the issues and resolve the matter by mutual agreement.  You may have to pay all or part of the cost of mediation. If you request mediation, the running of the timeframe in which you may file an appeal stops.  When mediation closes, the clock restarts and you will have the balance of the days remaining in that period to file an appeal.  To request mediation, you must submit your written request no later than 30 calendar days after you receive this notice.  To request mediation, write to the [insert State name] State mediation program at the following address and provide a copy of your request for mediation to NRCS.  [Insert mediation program address or other address as agreed on by the State certified mediation program and State office]”

• For Final Technical Determinations

--  “You may appeal this determination to the FSA county committee (COC) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the FSA appeal procedures found at 7 CFR Part 780.  If you appeal to the COC, you have the right to an informal hearing that you or your representative may attend either personally or by telephone.  To appeal, write to the COC at the following address and explain why you believe this determination is erroneous.  [Insert COC address]”

--  “Alternatively, you may appeal this determination to the National Appeals Division (NAD) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NAD appeal procedures found at 7 CFR Part 11.  If you appeal to NAD, you have the right to a hearing that you or your representative may attend.  Once a hearing with NAD begins, you waive any rights to reconsideration, an appeal to FSA, and mediation.  To appeal, you must write to NAD at the following address, explain why you believe this determination is erroneous, and provide a copy to FSA.  You must personally sign your written appeal to NAD and include a copy of this letter.  [Insert NAD address]”

• For Program Decisions

--  “Mediation is available as part of NRCS’s informal appeal process.  Mediation may enable us to narrow the issues and resolve the matter by mutual agreement.  You may have to pay all or part of the cost of mediation.  If you request mediation, the running of the timeframe in which you may file an appeal stops.  When mediation closes, the clock restarts and you will have the balance of the days remaining in that period to file an appeal.  To request mediation, you must submit your written request no later than 30 calendar days after you receive this notice.  To request mediation, write to the [insert State name] State mediation program at the following address and provide a copy of your request for mediation to NRCS.  [Insert mediation program address or other address as agreed on by the State certified mediation program and State Office]”

--  “You may request that the NRCS State Conservationist  (STC) reconsider this decision by filing a written request no later than 30 calendar days after you receive this notice in accordance with NRCS’s appeal procedures found at 7 CFR Part 614.  If you request reconsideration, you have the right to an informal hearing with NRCS STC that you or your representative may attend personally or by telephone.  If you choose to seek reconsideration, you may later appeal the decision to NAD.  To request reconsideration, write to the NRCS STC at the following address and explain why you believe this determination is erroneous.  [Insert applicable address]”

--  “You may appeal this decision to the FSA county committee (COC) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the FSA appeal procedures found at 7 CFR Part 780.  If you appeal to the COC, you have the right to an informal hearing which you or your representative may attend either personally or by telephone.  To appeal, write to the COC at the following address and explain why you believe this decision is erroneous.  [Insert COC address]”

--  “You may appeal this decision to NAD by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NAD appeal procedures found at 7 CFR Part 11. If you appeal to NAD, you have the right to a hearing that you or your representative may attend.  Once a hearing with NAD begins, you waive any rights to reconsideration, an appeal to FSA, and mediation.  To appeal, you must write to NAD at the following address, explain why you believe this determination is erroneous, and provide a copy to FSA.  You must personally sign your written appeal to NAD and include a copy of this letter.  [Insert NAD address]”

• Denial of Equitable Relief

--  “You may appeal a determination of the decision to deny equitable relief to the National Appeals Division (NAD) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NAD appeal procedures found at 7 CFR Part 11 and  Section 614.9(e) and Final Rule, 77 FR 34186, June 11, 2012.   If you appeal to NAD, you have the right to a hearing that you or your representative may attend.  Once a hearing with NAD begins, you waive any rights to reconsideration, an appeal to FSA, and mediation.  To appeal, you must write to NAD at the following address, explain why you believe this denial is erroneous, and provide a copy to NRCS.  You must personally sign your written appeal to NAD and include a copy of this letter. [Insert NAD address]”

C.  Notice Timing and Documentation (7 CFR Section 614.6)

(1)  The steps in the appeals process follow strict timelines.  In order to document adherence to timeframes, documentation is important when issuing decision notices.

(2)  Notices may be delivered in any of the following manners:

(i)  Mailed certified return receipt (for documentation of receipt)

(ii)  Mailed using any other method of delivery notification available from the U.S. Postal Service

(iii)  Hand delivered (if hand delivered, participants must acknowledge receipt of notice in writing)

510.14  Mediation (7 CFR Section 614.11 and 7 CFR Part 785)

A.  Mediation Option

Participants who request mediation must file their request within 30 days of receiving an adverse preliminary technical determination or a program decision.  Mediation requests must be made to the NRCS official designated in the decision notice (see 7 CFR Section 614.11(a)).

B.  Mediation (See Subpart E, “Mediation”)

A qualified mediator will facilitate disputes.  The mediator has no decisionmaking authority.  A qualified mediator is a neutral third party who serves as an impartial facilitator between two or more disputants to assist them in resolving a dispute.  The mediator helps the parties identify areas of agreement and encourage the parties to explore potential options toward resolution.

C.  Mediation Settlement Timeline

The parties will have 30 days from the date of the first mediation session to reach a settlement agreement.  This date can be extended upon agreement of the parties.  The mediator will notify the State Conservationist whether the parties have reached an agreement (see 7 CFR Section 614.11(c)).

D.  Also see Subpart E, “Mediation” (for USDA certified mediation programs).

510.15  Appeals to FSA County Committees (7 CFR Sections 614.10 and 780.11)

A.  Decisions Appealable Before the Farm Services Agency COC

(1)  A participant may appeal a final technical determination or a program decision to the FSA COC for decisions made under title XII. 

(2)  The appeals rules contained in 7 CFR Part 780 and policy included in the Farm Service Agency Handbook 1-APP apply to all appeals of technical determinations to the FSA county or area committee.

(3)  The following Web sites provide access to the applicable FSA directives:

(i)  FSA Handbook Notices

(ii)  FSA Handbooks

B.  County Committee Authorities

The FSA COC does not have the authority to overrule an NRCS decision.  Their role is to hear the participant’s case and determine whether they believe there is enough evidence that the NRCS State Conservationist should reconsider the adverse decision.

C.  Process for Appeals to the FSA County Committee

(1)  The participant may make a written request for an informal appeal by the applicable FSA county committee within the applicable timeframe as provided in the decision notice COC.

(2)  The COC will discuss the merits of the appeal at a COC meeting.  An NRCS representative must be present during the FSA COC hearing or meeting.

(3)  If the local COC finds merit in appeal, the FSA county executive director (CED) must send the case record and findings of merit to the FSA State executive director (SED) requesting review.

(4)  The FSA SED will send a letter to the NRCS STC to review the case and reconsider the NRCS decision.

Note:  If the STC issued the final decision during reconsideration or through the informal hearing process, NRCS may choose not to review the appeal under consideration by the COC if there are no new findings or issues to consider.

(5)  The STC will consult with the State appeals contact and designate an appropriate NRCS official to gather any additional information necessary for review of the adverse decision or determination.  The NRCS official is to obtain additional oral and documentary evidence from any party with personal or expert knowledge about the facts under review.  A field visit may be required.

(6)  NRCS will provide a written appeal response that contains the following:

(i)  A background or brief narrative explaining the reason for the response.

(ii)  Statement of issues being addressed

(iii)  The factual findings that provide the basis for the response.  These include the pertinent facts based on evidence that is specific to the issues under appeal. 

(iv)  The regulatory, statutory, or policy basis for the appeal response and how the facts or findings relate to the information cited.

(v)  The STC’s decision based on the issues under appeal and the facts applied to the general program provisions.

(vi)  NRCS will provide the response with a copy of any additional information and evidence gathered during the review.

(7)  FSA will complete the appeal notification to the participant.

510.16  Appeals to NAD

A.  NAD Organizational Structure (7 CFR Section 11.2)

(1)  NAD is an agency within the USDA, independent from all other agencies and offices of the Department.

(2)  The NAD National Headquarters office is located in Alexandria, VA.  The agency is organized into three regions. (See subpart G, exhibit 5, for the NAD regional office addresses and the States served by the specific regional office.)

(i)  Eastern Regional Office ­– Indianapolis, IN.

(ii)  Southern Regional Office – Cordova, TN.

(iii)  Western Regional Office – Lakewood, CO.

(3)  NAD hearing officers are located in offices throughout the United States.  Hearing officers serve one or more States and are assigned cases by the NAD regional office.

B.  Functions

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

C.  Also see subpart F.

510.17  Exhaustion of the Appeals Process

A.  When Appeal Rights are Exhausted

Appeal rights are exhausted and the appeal process is final when one of the following occurs:

(i)  The participant has not requested an appeal within 30 calendar days of the final technical determination or program decision.

(ii)  Within 30 calendar days of a State Conservationist review of programmatic decisions, and no additional appeal is requested.

(iii)  Within 30 calendar days of an FSA county or area committee final decision, and no additional appeal is requested.

(iv)  After a final technical determination or technical decision has been agreed upon through mediation.

(v)  After a NAD hearing officer issues a final appeal determination and neither the agency nor the appellant requests a director review.

(vi)  After a decision is rendered by the NAD director on a request for a director review, and neither the agency nor the appellant requests a reconsideration.

(vii)  After a decision is rendered by the NAD director on reconsideration of a previous director decision.

B.  Judicial Relief (7 CFR Section 614.17)

An appellant may not seek judicial relief in a United States District Court of competent jurisdiction until all administrative remedies provided by NAD are exhausted and a final decision is issued in the appeal.

510.18  Guidelines for Rescinding an NRCS Adverse Decision 

A.  Generally, NRCS should rescind an adverse determination or decision only when some error is detected or when it is determined to be in NRCS’s best interest, and possibly the participant’s best interest, to rescind the incorrect or misleading determination.  A rescission immediately removes the adverse decision out of the administrative review process.  At any time an appeal is pending before NAD, NRCS may rescind the adverse determination or decision if the action is warranted.  NRCS must notify the appellant, any agency representatives, and NAD if a determination or adverse decision is rescinded.  The agency is not required to state why it has chosen to rescind its adverse decision.

B.  Although exceptions may exist, an adverse NRCS determination or decision generally may not be rescinded after NAD has ruled on the issues under appeal. 

Note:  Caution should be exercised before rescinding any adverse decision.  Only those authorized NRCS appeal representatives and authorized NRCS officials may rescind the adverse decisions. (e.g., the STC is the only authority that can rescind a final technical determination or a program decision).

510.20  General Information

A.  General Information

This subpart provides the procedures for informal review and appeal of preliminary and final technical determinations.

B.  Preliminary and Final Technical Determinations

(1)  Participation in programs is often related to technical decisions of highly erodible land (HEL) and wetland compliance (WC).  Disputes arising from an adverse technical determination vary in complexity and feasibility of resolution.  Therefore, the availability of effective, informal appeal procedures is central to NRCS’s goal of achieving just, speedy, and cost-effective resolutions.  Accordingly, this rule sets forth three separate means of informal appeal:  mediation, reconsideration, and hearing.  The text of the rule provides appeal options in the alternative, meaning a participant must choose one avenue of appeal.  This structure was adopted in order to facilitate efficient resolution of disputes.  The following sections describe each of the appeal options available to participants.  A request for reconsideration, mediation, or appeal is considered “filed” on the date—

(i)  The request was personally delivered, in writing, to the appropriate reviewing authority.

(ii)  Of postmark, if the request is mailed and properly addressed with adequate postage paid.

·  If a request is received by mail and does not have a postmark, was not properly addressed, or had postage due, the request is  considered filed on the date the request was received by the appropriate reviewing authority.

(iii)  A complete FAX copy is received by the reviewing authority.

(2)  All requests will be receipted with date of filing.  A participant does not have a right to an exception to the time limit set for filing requests for appeal ability, reconsideration, mediation, or appeal within NRCS.  An NRCS decision not to accept a late-filed appeal is final and not subject to further review or appealability review. 

(i)  If written requests for reconsideration, mediation, or appeal are received beyond the time period specified in the determination or decision notice, the NRCS reviewing authority will notify the participant that the request (for reconsideration, mediation, or appeal) was either of the following:

·  Not filed timely with NRCS, and therefore, will not be further processed

·  Considered not timely filed, but that the participant has 7 workdays to provide the Farm Service Agency (FSA) a written explanation of why the late-filed request (for reconsideration, mediation, or appeal) should be accepted for further processing

(ii)  NRCS has authority and discretion to accept late filed requests, if the circumstances warrant such action.  The reviewing authority must document, in writing, the reasons for accepting a late-filed request and provide acknowledgement of appeal receipt to the participant.

(3)  If the participant seeks reconsideration, mediation, or appeal with a properly filed request, NRCS will issue an acknowledgement letter providing pertinent information towards the appeal process. 

(i)  Of the right to an informal hearing or meeting with the reviewing authority

(ii)  That a copy of the agency record will be sent to the appellant’s address of record in advance of the hearing or mediation

(iii)  Of the scheduled date, time, and location of the hearing or meeting with agency allowing at least 10 calendar days notice

(iv)  That the hearing may be a personal hearing or may be by telephone, if sufficient telephone equipment is available

(v)  That if the appellant or representative cannot, or chooses not to, attend the hearing or meeting, the appellant may submit written comments before the scheduled review

(vi)  That the Government does not reimburse appellants for expenses incurred with an informal hearing or meeting

(4)  NRCS will send the acknowledgement letter to the appellant and all persons affected by the matter under review notifying them of their right to be present or to submit information for consideration. 

 510.21  Preliminary Technical Determinations (7 CFR Section 614.7)

A.  Preliminary Technical Determination Authority

Until the preliminary technical determination becomes final, NRCS maintains jurisdiction over the issue.

B.  Preliminary Technical Determination Review Process

(1)  A preliminary technical determination becomes final 30 calendar days after the participant receives the decision unless—

(i)  The participant files a written request asking for review of the adverse preliminary technical determination.  The appeal is considered filed when the appropriate official, as indicated in the adverse decision notice, has received the participant’s request.  The participant may request either of the following review processes:

·  Reconsideration with a field visit, office visit, or other designated location meeting site.

·  Mediation (See subpart B, section 510.10 (I), and subpart E.).

(ii)  The participant submits a written request to the State Conservationist to waive his or her preliminary reconsideration and review rights in order to obtain immediate finality of the technical determination.  Upon approval of the waiver request, the participant will be granted those appeal rights available for a final technical determination.  (See section 510.12.)

(2)  State Conservationist may grant expedited finality to those requests that address application needs or resource issues immediately (i.e., wetland restoration) for the determined area. The State Conservationist will provide written notification of approval of waiver and grant those appeal rights available for a final technical determination. 

(3)  Preliminary Technical Determination Reconsideration With a Field Visit, Office Visit, or Other Designated Location Meeting Site

(i)  Participant requests reconsideration of an adverse preliminary technical decision.

(ii)  The designated conservationist sends an acknowledgement letter and secures the agency record and provides a copy of the record to the appellant. 

(iii)  The designated conservationist, participant, and, at the option of the conservation district, a district representative will make a field or office visit or meet with the appellant at a designated location to review the record and determination.  The purpose of the meeting is to gather additional information and discuss the facts relating to the preliminary technical determination.  The participant should provide additional documentation and relevant information concerning the issues of the appealer’s oral statements to the designated conservationist.  The evidence gathered should be added to the agency record. 

(4)  Within 15 calendar days of the visit, the designated conservationist will reconsider his or her preliminary technical determination based on the agency record.  The designated conservationist is to ensure that an accurate and concise written record of the meeting and supplemental information gathered is maintained.  The agency record should include a summary of the appellant’s issues under appeal, names of all persons present at any time during the meeting, proper organization and identification of all materials considered towards the findings and facts, analysis and conclusions afforded the appeal issue(s) (see Section G, Section 510.62, “Summary Outline for an Appeal”).

(5)  If the reconsidered determination is no longer adverse to the participant, the designated conservationist issues the reconsidered determination as a final technical determination.

(6)  If the preliminary technical determination remains adverse, the designated conservationist will send the reconsideration decision and agency record to the STC for an independent review and final determination.  This additional review will consist of the following:

(i)  Review the decision to ensure that all regulations, policy, and procedures are followed.

(ii)  Review the agency record to ensure that the record fully supports the determination.

(7)  If either one of these reviews demonstrates a lack of support for the adverse determination or the issues under appeal, the State Conservationist will either remand the decision back to the field office for supplemental actions and documentation or request a new field investigation by appropriate staff.

510.22  Final Technical Determination (7 CFR Section 614.8)

A.  Issuing the Final Technical Determination

(1)  The STC will issue a final technical determination, with appropriate appeal rights, to the participant as soon as is practicable after receiving the reconsideration and agency record from the designated conservationist.

(2)  The technical determination issued by the State Conservationist becomes a final NRCS decision upon receipt by the participant.

B.  Appealing the Final Technical Determination

Preliminary technical determinations become final and appealable—

(i)  Thirty calendar days after the participant receives the preliminary technical determination unless the determination is appealed in a timely manner.

(ii)  Thirty calendar days after the beginning of a mediation session if a mutual agreement has not been reached by the parties.

C.  Further Appeal Rights

A participant may appeal a final technical determination to either of the following:

(i)  The FSA county committee (see Section 510.15, “Appeals to FSA County Committees, 7 CFR Sections 614.10 and 780.11”).

(ii)  National Appeals Division (see Section 510.16, “Appeals to NAD”).

D.  Authority (7 CFR Section 614.5)

If NRCS finds error on a previously issued final technical determination, the State Conservationist will rescind the determination in error.  The designated conservationist will issue a new preliminary technical determination, providing an explanation of the reason for reversing or modifying the original determination, and provide appeal rights.

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

Click here to obtain a copy of NAD Regulation, 7 CFR 11.

Click here to obtain a copy of NAD Regulation, 7 CFR 614.

Click here to obtain a copy of FSA Regulations, Interim final rule and click here to obtain a copy of the Final rule, 7 CFR 780.

 

Subpart A – NRCS Administration of Appeals and Organization

510.0  Administration of Appeals and Organization

Subpart B – General Information

510.10  General Information

510.11  General Rules

510.12  Agency Record, 7 CFR § 614.6(a)

510.13  Notification, 7 CFR § 614.6(b)

510.14  Mediation, 7 CFR § 614.11 and 7 CFR 785

510.15  Appeals to FSA County Committees, 7 CFR § 614.10 and 7 CFR 780.11

510.16  Appeals to NAD

510.17  Exhaustion of the Appeals Process

510.18  Guidelines for Rescinding an NRCS Adverse Decision

Subpart C – Preliminary and Final Technical Determinations

510.20  General Information

510.21  Preliminary Technical Determinations, 7 CFR § 614.7

510.22  Final Technical Determination

Subpart D – Program Decisions

510.30  Program Decisions, 7 CFR § 614.9

510.31  Appeal Options for Program Decisions

510.32  Informal Hearing with the NRCS State Conservationist

Subpart E – Mediation

510.40  General Information

510.41  Mediation Availability

510.42  Requesting Mediation

510.43  Responsibilities and Roles

510.44  Closing Out Mediation

Subpart F – National Appeals Division

510.50  General Information

510.51  Appeal Rights under NAD

510.52  NAD Appeal Process

510.53  NAD Hearings

510.54  Specific NAD Hearing Procedures

510.55  NAD Hearing Officer Determination

510.56  NAD Director Reviews

510.57  Requests for Reconsideration of a NAD Director Review Decision

510.58  Implementing NAD Decisions

Subpart G – Exhibits

510.60  General Information

510.61  Exhibit 1, Example of the Agency Administrative Record Organization

510.62  Exhibit 2, Administrative Record Content Checklist

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

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

510.65  Exhibit 5, Sample Technical Determination or Technical Decision Format

510.66  Exhibit 6, Sample Preliminary Technical Determination Transmittal Letter

510.67  Exhibit 7, Sample Field Visit Acknowledgement Letter

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

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

510.70  Exhibit 10, Sample Summary Outline for an Appeal

510.71  Exhibit 11, Sample State Conservationist Decision Letter

Subpart A – Definitions

511.0  Definitions

Subpart B – General Provisions

511.10  Overview

511.11  Introduction

511.12  NRCS Responsibilities

511.13  Other Agency Involvement

Subpart C – Application Process and Eligibility Requirements

511.20  Overview

511.21  Signup Process

511.22  Application

511.23  Landowner Eligibility

511.24  Land Eligibility         

Subpart D – Ranking Criteria

511.30  Overview

511.31  Establishing State Ranking Criteria

511.32  Ranking Process

Subpart E – Enrollment and Acquisition

511.40  Overview

511.41  Selection for Enrollment

511.42  Acceptance of Offer of Enrollment

511.43  Withdrawal of Offers

511.44  Compensation for Easements and 30-Year Contracts

511.45  Compensation for 10-Year Restoration Cost-Share Agreements

511.46  Cost-Share Payments

511.47  Easement Participation Requirements (Permanent or 30-Year Easements)

511.48  Participant Requirements for 30-Year Contracts (Acreage Owned by Indian Tribes)

511.49  Transfer of Land

511.50  Legal Boundary Survey

511.51  Baseline Property Inventory Report

511.52  Closing

Subpart F – HFRP Restoration Plan and Landowner Protections

511.60  Overview

511.61  HFRP Restoration Plan Development and Landowner Protections

511.62  Landowner Protections

511.63  Modification of the HFRP Restoration Plans

Subpart G – Easement Valuation

511.70  Determining Easement Compensation

511.71  Authorized Official

511.72  Appraiser Qualifications

511.73  Appraisal Reports

511.74  Information Provided by USDA/NRCS to the Appraiser

511.75  Appraisal Reviews

511.76  Technical Appraiser Responsibilities

511.77  Limitations

511.78  Reviewer Independence

511.79  Agency Supplemental Standards

511.80  Maintaining Current Appraisals

511.81  Changes in Acre or Substitution of Land or Title Conditions from Original Appraisal

511.82  Format for Supplemental Appraisal Reports

511.83  Confidential Nature of Appraisals

511.84  Exceptions

511.85  NHQ Oversight

511.86  Records Management

511.87  Public Access to Data

Subpart H – Maintenance, Management, Monitoring and Enforcement

511.90  Overview

511.91  Management

511.92  Compatible Uses

511.93  Prohibited and Incompatible Uses

511.94  Activities Allowed Within The Easement Area

511.95  Operations and Maintenance

511.96  Monitoring

511.97  Violations

511.98  Enforcement

511.99  Other Considerations

Subpart I - Exhibits

511.100  Form NRCS-CPA 1200, Conservation Program Application (Not OMB Approved)

511.101  HFRP Hazardous Substance Examination Checklist

511.102  Appraisal Specifications for Appraising Real Property for HFRP

511.103  Form AD-1154, Long Term Agreement

511.104  Agreement to Enter Contract for 30-Year Land Use

511.105  Form AD-1157, Option Agreement to Purchase

511.106  Form AD-1157A, Option Agreement to Purchase Amendment 1

511.107  Preliminary Certificate of Inspection and Possession

511.108  Form NRCS-LTP-23, Certificate of Use and Consent

511.109  Form NRCS-CPA-260, Healthy Forests Reserve Program Conservation Easement

511.110  Form AD 1158, (former NRCS-LTP-21,CCC-1256), Subordination Agreement and Limited Lien Waiver

511.111  HFRP Monitoring Worksheet

511.112  Form AD-1161, (former CCC-1202, NRCS-FNM-141), Application for Payment

511.113  Land Survey Specifications for NRCS Easement Programs

511.114  Technical Review Specifications for Appraising Real Property for the Healthy Forests Reserve Program

511.115  Form AD-1155, Conservation Plan Schedule of Operations

511.116  Form AD-1155A, Conservation Plan Schedule of Operations (must accompany AD-1155)

511.0  Definitions

A.  Acreage Owned by Indian Tribes—Lands to which the title is held by Indian Tribes.  This term does not include land held in trust by the United States or lands where the fee title contains restraints against alienation.

B.  Biodiversity (Biological Diversity)—The variety and variability among living organisms and the ecological complexes in which they live.

C.  Candidate Conservation Agreement with Assurances (CCAA)— A voluntary arrangement between the U. S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) and cooperating non-Federal landowners under the authority of Section 10(a)(1) of the Endangered Species Act of 1973 (16 U.S.C. Section 1539(a)(1)).  Under the CCAA and an associated enhancement of survival permit, the non-Federal landowner implements actions that are consistent with the conditions of the permit. Candidate conservation agreements with assurances with FWS are also subject to regulations at 50 CFR Section 17.22(d) for endangered species, 50 CFR Section 17.32(d) for threatened species, or applicable subsequent regulations.

D.  Carbon Sequestration—The long term storage of carbon in soil (as soil organic matter) or in plant material (such as in trees).

E.  Chief—The Chief of the Natural Resources Conservation Service.

F.  Confer—To discuss for the purpose of providing information; to offer an opinion for consideration; or to meet for discussion, while reserving final decision-making authority with NRCS.

G.  Conservation Practice—One or more conservation improvements and activities that benefit the eligible land and optimize environmental benefits these include structural practices, land management practices, vegetative practices, forest management, and other improvements planned and applied in accordance with NRCS standards and specifications.

H.  Conservation Treatment—Any and all conservation practices, measures, activities, and works of improvement that have the purpose of alleviating resource concerns, solving or reducing the severity of natural resource use problems, or taking advantage of resource opportunities, including the restoration, enhancement, maintenance, or management of habitat conditions for HFRP purposes.

I.  30-year Contract—A contract that is limited to acreage owned by Indian Tribes.  The 30-year contract is not eligible for use on Tribal lands held in trust or subject to Federal restrictions against alienation.

J.  Coordination—To obtain input and involvement from others while reserving final decision-making authority with NRCS.

K.  Cost-Share Agreement—A legal document that specifies the rights and obligations of any participant accepted into the program.  An HFRP cost-share agreement is a binding agreement for the transfer of assistance from USDA to the participant to share in the costs of applying conservation.  A cost-share agreement under HFRP has a duration of 10-years.

L.  Cost-Share Payment—The payment made by NRCS to a program participant or vendor to achieve the restoration, enhancement, and protection goals of enrolled land in accordance with the HFRP restoration plan.

M.  Easement—A conservation easement, which is an interest in land defined and delineated in a deed whereby the landowner conveys certain rights, title, and interests in a property to the United States for the purpose of protecting the forest ecosystem and the conservation values of the property.

N.  Easement Area—The land encumbered by an easement.

O.  Easement Payment—The consideration paid to a landowner for an easement conveyed to the United States under the HFRP.

P.  Fish and Wildlife Service (FWS)—An agency of the U.S. Department of Interior.

Q.  Forest Ecosystem—A dynamic set of living organisms, including plants, animals, and microorganisms interacting among themselves and with the environment in which they live.  A forest ecosystem is characterized by predominance of trees and by the fauna, flora, and ecological cycles (energy, water, carbon, and nutrients).

R.  Forest Service—An agency of the U.S. Department of Agriculture.

S.  HFRP Restoration Plan—The document that identifies the conservation treatments that are scheduled to be applied to land enrolled in HFRP in accordance with NRCS standards and specifications.

T.  Indian Tribe—Any Indian Tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. Section 1601 et seq.), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

U.  Landowner—An individual or entity having legal ownership of land.  The term “landowner” may also include all forms of collective ownership, including joint tenants, tenants in common, and life tenants.

V.  Landowner Protections—Protections and assurances made available by NRCS to HFRP participants when requested and whose voluntary conservation activities result in a net conservation benefit for listed, candidate, or other species and meet other requirements of the program.  These landowner protections are subject to an HFRP restoration plan and associated cost-share agreement, 30-year contract, or easement being properly implemented.  Landowner protections made available by the Secretary of Agriculture to HFRP participants may include an incidental take authorization received by NRCS from FWS or National Marine Fisheries Service (NMFS) or may be provided by a safe harbor agreement or candidate conservation agreement with assurances directly between the HFRP participant and FWS or NMFS as appropriate.

W.  Liquidated Damages—A sum of money stipulated in a contract or agreement that the participant agrees to pay NRCS if the participant fails to adequately complete the terms of the restoration agreement.  The sum represents an estimate of the expenses incurred by NRCS to service the restoration agreement and reflects the difficulties of proof of loss and the inconvenience or unfeasibility of otherwise obtaining an adequate remedy.

X.  Maintenance—Work performed to keep the applied conservation practice functioning for the intended purpose during its life span.  Maintenance includes work to prevent deterioration of the practice, repairing damage, or replacement of the practice to its original condition if one or more components fail.

Y.  Measure—One or more specific actions that is not a conservation practice but has the effect of alleviating problems or improving the treatment of the resources.

Z.  National Marine Fisheries Service (NMFS)—An agency of the U.S. Department of Commerce.

AA.  Natural Resources Conservation Service (NRCS)—An agency of the U.S. Department of Agriculture, which has the responsibility for administering HFRP.

BB.  Participant—A person, entity, or Indian Tribe who is a party to a 10-year cost-share agreement, 30-year contract, or an agreement to purchase an easement.

CC.  Private Land—Land that is not owned by a local, State, or Federal governmental entity.  This includes land that meets the definition of “acreage owned by Indian Tribes.”

DD.  Restoration—Implementing any conservation practice (vegetative, management, or structural) or measure that improves forest ecosystem values and functions (native and natural plant communities).

EE.  Restoration Agreement—A cost-share agreement between the program participant and NRCS to restore, enhance, and protect the functions and values of a forest ecosystem for the purposes of HFRP under either an easement, 30-year contract, or a 10-year cost-share agreement enrollment option.

FF.  Safe Harbor Agreement (SHA)—A voluntary arrangement between FWS or NMFS and cooperating non-Federal landowners under the authority of section 10(a)(1) of the Endangered Species Act of 1973 (16 U.S.C. Section 1539(a)(1)).  Under the safe harbor agreement and an associated enhancement of survival permit, the private property owner implements actions that are consistent with the conditions of the permit.  Safe harbor agreements with FWS are also subject to regulations at 50 CFR Section 17.22(c) for endangered species, 50 CFR Section 17.32(c) for threatened species, or applicable subsequent regulations.

GG.  State-Listed Species—A species listed as threatened or endangered under State endangered species laws, a candidate for such listing, or a species listed in a State wildlife action plan as a “species of greatest conservation need.”

HH.  SignUp Notice—The public notification document that NRCS provides to describe the particular requirements for a specific HFRP signup.

II.  State Conservationist—The NRCS employee authorized implement HFRP and direct and supervise NRCS activities in a State, the Caribbean Area, or the Pacific Islands Area.

JJ.  Technical Service Provider—An individual, private-sector entity, or public agency certified by NRCS to provide technical services to program participants in lieu of or on behalf of NRCS.

511.10  Overview

This subpart provides—

(1)  General information about the Healthy Forests Reserve Program (HFRP)

(2)  The source of program authority

(3)  Roles and responsibilities

511.11  Introduction

A.  General Information

(1)  Under the HFRP, NRCS purchases conservation easements from or enters into 30-year contracts or 10-year cost-share agreements with eligible landowners who voluntarily cooperate in the restoration and protection of forestlands and associated lands.

(2)  To participate in HFRP, a landowner must agree to the implementation of an HFRP restoration plan, the effect of which is to restore, protect, enhance, maintain, and manage the habitat conditions necessary for either of the following:

(i)  To increase the likelihood of recovery of listed species under the Endangered Species Act (ESA)

(ii)  To measurably improve the well-being of species that are not listed as endangered or threatened under the ESA, but are in any of the following categories:

·          Candidates for such listing

·          State-listed species

·          Species identified by the Chief for special consideration for funding

(3)  NRCS may provide cost-share assistance for activities that promote the restoration, protection, enhancement, maintenance, and management of forest ecosystem functions and values.  Specific restoration, protection, enhancement, maintenance, and management activities may be undertaken by the landowner or others designated by NRCS.

B.  Administration

(1)  The HFRP is administered by NRCS in coordination with the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and other cooperating agencies and organizations.

(2)  The Chief of NRCS may implement HFRP in any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United States, American Samoa, and the Commonwealth of the Northern Marianna Islands.

(3)  The Chief may modify or waive a provision of this part if the Chief determines that the application of such provision to a particular, limited situation is inappropriate and inconsistent with the goals of the program.  This authority cannot be further delegated.  The Chief may not modify or waive any provision of this part that is required by law.

(4)  No delegation in this part to lower organizational levels precludes the Chief from determining any issue arising under this part or from reversing or modifying any determination arising from this part.

(5)  In carrying out this program, NRCS may confer with private forest landowners, including Indian Tribes and the State Technical Committee, which may include the following:

(i)  The Forest Service and other Federal agencies

(ii)  State fish and wildlife agencies

(iii)  State forestry agencies

(iv)  State environmental quality agencies

(v)  Other State conservation agencies

(vi)  Nonprofit conservation organizations

(6)  No determination by any Federal or State agency (including FWS, NMFS, or the Forest Service), conservation district, or other organization compels the NRCS to take any action that the NRCS determines does not serve the purposes of the program as established by this part. 

C.  Purpose and Scope

(1)  The purpose of the HFRP is to assist landowners, on a voluntary basis, in restoring, enhancing, and protecting forestland resources on private lands to—

(i)  Promote the recovery of endangered and threatened species under the ESA

(ii)  Improve plant and animal biodiversity

(iii)  Enhance carbon sequestration

(2)  The enrollment options available under the HFRP are listed in Figure 511-A1.  

Figure 511-A1

D.  Program Authority

(1)  Title V of Public Law 108-148, the Healthy Forests Restoration Act of 2003, authorized the establishment of the HFRP.  This law was amended by Public Law 110-246, the Food, Conservation, and Energy Act of 2008.

(2)  The Secretary of Agriculture has delegated authority to implement HFRP to the Chief of NRCS.  In addition, technical support associated with forest management practices may also be provided by the U.S. Forest Service.

(3)  Section 501 of title V of the Healthy Forests Restoration Act provides that the program will be carried out in coordination with the Secretary of the Interior and the Secretary of Commerce.  NRCS works closely with FWS and NMFS to further the species recovery objectives of the HFRP and to help make available to HFRP participants safe harbor or similar assurances and protection under Section 7(b)(4) or 10(a)(1) of ESA (16 U.S.C. Section 1536(b)(4) or 1539(a)(1)).

511.12  NRCS Responsibilities

A.  National Headquarters (NHQ)

(1)  National leadership is provided by the Chief or the Chief’s designee.  NHQ provides—

(i)  Program policy and direction

(ii)  Funding allocations to achieve national program objectives

(iii)  Budget formulation

(iv)  Coordination with national partners

(2)  NHQ monitors program implementation to ensure that the program is implemented in accordance with the HFRP authorizing language, regulations, and national policy.

(3)  NHQ ensures that of the funds expended under the program on a national level for any fiscal year to acquire easements and enter into 10-year cost-share agreements, not more than 60 percent are used for easements and not more than 40 percent are used for cost-share agreements.  The Chief may use any funds that are not obligated by April 1 of the fiscal year for which the funds are made available to carry out a different method of enrollment during the fiscal year.

(4)  NHQ will request HFRP proposals from States, including a continuation letter from the States that have an approved HFRP program established.  Proposals will be ranked nationally by an interdisciplinary interagency team.  Priority will be given to proposals based on the following:

(i)  Species

·          Primarily, species listed as endangered or threatened under 16 U.S.C. Section 1533

·          Secondarily, species that are not listed as endangered or threatened under 16 U.S.C.  Section 1533, but are candidates for such listing, State-listed species, or species of special concern

(ii)  Cost Effectiveness.—The cost effectiveness of each agreement or easement and associated restoration plans will be considered so as to maximize the environmental benefits per dollar expended.

B.  Regional Conservationists (RCs)

The RCs provide leadership to the States regarding administrative procedures and evaluate the following activities:

(i)  Consistency of implementation according to national policy and adequacy of technical standards and specifications

(ii)  Coordination of priorities and procedures between States

(iii)  Overall program effectiveness

C.  State Offices

State Conservationists provide leadership for State NRCS HFRP activities.  The responsibilities of State Conservationists and their designees are as follows:

(i)  Consult with the local or regional FWS or NMFS, State wildlife and natural resource agencies, conservation organizations, and other partners.

(ii)  Develop agreements with other Federal and State agencies and other partners for the efficient use of personnel and other resources, including the provision of technical assistance, to meet the HFRP workload demand and to achieve ecologically sound and cost-effective projects.

(iii)  Designate staff persons and delegate appropriate authorities, as defined in Title 130, General Manual (GM), Part 400, Subpart B, Delegations of Authority , to carry out NRCS responsibilities at State, area, and field offices.

·          The State Conservationist will designate the local NRCS representative or representatives.

·          USDA employees are prohibited from servicing HFRP easements or restoration agreements on land owned by the employee or members of the employee’s immediate family, land on which they or members of their immediate families have a financial interest, or where there is an appearance of or actual conflict of interest.  In such situations the State Conservationist will designate an NRCS employee to provide assistance ( 360-GM, Part 413 ).

(iv)  Prepare necessary State supplements to this manual.

(v)  Maintain high quality conservation treatment implementation.

(vi)  Provide training needed to implement the program effectively.

(vii)  Develop a list of eligible restoration practices and payment rates.

(viii)  Coordinate with adjoining States on—

·          The technical standards and specifications used for restoration.

·          The priorities and procedures for program implementation.

·          Establishing ranking criteria.

(ix)  Develop a weighted ranking process to prioritize all eligible applications.

(x)  Solicit applications and select applications for funding.

(xi)  Conduct all easement acquisition activities.

(xii)  Ensure restoration is completed, including arranging for restoration payments to landowners and vendors.

(xiii)  Determine method for implementing the restoration activities.

(xiv)  Ensure that conservation treatment is in accordance with the Field Office Technical Guide (FOTG) and all planning activities are in accordance with Title 180, National Planning Procedures Handbook (NPPH), Part 600 , and this manual (Part 511).

(xv)  Develop State protocol for annual monitoring of enrolled lands that includes use of the HFRP monitoring document. See subpart I of this manual.

(xvi)  Review and approve or reject requests for compatible use authorization.

(xvii)  Maintain monitoring records for enrolled lands.

(xviii)  Maintain official program records and documentation.

(xix)  Track progress and accomplishments.  A tool should be used that will accurately and consistently track all administrative procedures, program costs, program accomplishments, and financial outlays and provide financial reports.  NHQ will use the information provided to assess workload conditions, monitor progress of program implementation, obtain information that may be used to determine fund allocations, make funding allocations, and make allowance changes.

(xx)  Provide information to RCs for concurrence and review of cooperative agreements, Federal contracts, contribution agreements, and option agreements to purchase, as required (see Section 511.02(B)).

(xxi)  Enforce easement or restoration agreement provisions in accordance with Subpart D, Ranking Criteria.

(xxii)  Conduct marketing, education, and outreach activities.

(xxiii)  Announce State program signup period and enrollment priorities.

D.  Area Offices

Perform responsibilities for HFRP as delegated by the State Conservationist.

E.  Field Offices

As delegated by the State Conservationist, the designated conservationist or delegated NRCS representative must—

(i)  Coordinate with appropriate agencies, organizations, or cooperating partner to market, administer, and restore the habitat, topography, and vegetation of enrolled land and protect the functions and values of the enrolled acres.

(ii)  Accept HFRP applications and complete all application activities.

(iii)  Complete program eligibility determinations in consultation with FWS, in accordance with the provisions in this manual.

(iv)  Complete ranking form and certify that the project meets program objectives with input from the landowner, FWS, and NMFS, as needed.

(v)  Conduct environmental due diligence requirements as outlined in Subpart D, Ranking Criteria, of this manual to verify the absence of offsite and onsite conditions that would preclude successful restoration and protection of fish and wildlife habitat for identified species.

(vi)  Complete the preliminary restoration plan and preliminary estimate of restoration costs.

(vii)  Forward application and supporting documentation to the State Conservationist.

(viii)  Conduct easement acquisition activities, as assigned by the State Conservationist.

(ix)  Prepare the final Healthy Forests Restoration Plan and detailed practice designs and cost estimates.

(x)  Certify that the legal boundary survey is correct and verify that boundary markers have been correctly placed.

(xi)  Develop compatible use authorization, as needed.

(xii)  Complete all conservation planning activities in accordance with the National Environmental Protection Act (NEPA), NPPH, and subpart E of this manual.

(xiii)  Arrange for the application of conservation systems and ensure that practices meet standards and specifications contained in the FOTG.

(xiv)  Provide the landowner with technical assistance to comply with the terms of easements and restoration agreements.

(xv)  Certify practice establishment for payment.

(xvi)  Conduct monitoring activities as required by subpart F of this manual.

(xvii)  Maintain HFRP records and reports sufficient for monitoring and compliance purposes.

(xviii)  Advise the State office of compliance and enforcement issues, as detailed in Subpart F, HFRP Restoration Plan and Landowner Protections, of this manual.

511.13  Other Agency Involvement

A.  FWS and NMFS

FWS and NMFS (where applicable) will be provided the opportunity to participate in all of the following:

(i)  Assisting NRCS with land eligibility determinations after applications have been received.

(ii)  Assisting NRCS in restoration planning such that enrolled lands achieve maximum wildlife benefits and forestland resources, taking into consideration the cost of such restorations.

(iii)  Incorporating responsibilities under section 7 of the Endangered Species Act with HFRP consultation actions.

(iv)  Providing recommendations to NRCS regarding the timing, duration, and intensity of compatible uses such that the uses further the protection and enhancement of the forestland and other associated ecological values of the easement lands.

(v)  Providing recommendations to NRCS in development of the HFRP restoration plan.

(vi)  Providing assistance through an appropriate agreement or other mechanism in areas of HFRP implementation where it is determined to be in the best interest of the program (e.g., efforts to deliver HFRP restoration projects in cooperation with FWS partners for Fish and Wildlife Program efforts).

B. Conservation Districts (CDs)

CDs may participate by—

(i)  Assisting with identifying priority areas in their district.

(ii)  Assisting with the development and implementation of conservation plans.

(iii)  Reviewing the HFRP restoration plan and contract support document.

(iv)  Providing assistance, through cooperative agreements or other mechanisms, in areas of HFRP implementation where it is determined by NRCS to be in the best interest of the program.

(v)  Assisting with local marketing, education, and outreach efforts.

C.  Other Federal, State, and Cooperating Partners

Other entities with appropriate expertise may—

(i)  Provide recommendations for ranking priority criteria.

(ii)  Identify program opportunities.

(iii)  Provide assistance, through an appropriate agreement or other mechanism, in areas of HFRP implementation where it is determined by NRCS to be in the best interest of the program.

511.20  Overview

This subpart provides information about the application process, land eligibility requirements, and participant eligibility requirements.

511.21  Signup Process

As funds are available, the State Conservationist will issue a public signup notice that announces and explains the rationale for decisions based on the following:

(1)  The geographic scope of the signup

(2)  Any additional program eligibility criteria that are not specifically listed in this part

(3)  Any additional requirements that participants must include in their Healthy Forests Reserve Program (HFRP) application that are not specifically identified in this part

(4)  Information on the ranking criteria of enrollment for funding

(5)  An estimate of the total funds NRCS expects to obligate during a given signup

(6)  The schedule for the signup process, including the deadlines for applying

511.22  Application

A.  Application for Participation.—To apply for enrollment through an easement, 30-year contract (acreage owned by Indian Tribes only), or 10-year cost-share agreement, landowners must submit an application for participation in the HFRP during an announced period for such signup.

(1)  Landowners who are interested in participation for all HFRP enrollment options must apply by completing Form NRCS-CPA-1200, Conservation Program Application, (Subpart I, Exhibits, Section 511.100).

(2)  By filing an application for participation, the applicant consents to an NRCS representative entering the land for purposes of determining land eligibility and for other activities that are necessary or desirable for the NRCS to make offers of enrollment.  The applicant is entitled to accompany an NRCS representative on any site visits.

(3)  In order to enhance the probability of enrollment in HFRP, an applicant may voluntarily offer to accept a lesser payment than is being offered by NRCS.  Such offer and subsequent payments may not be less than 75 percent of the fair market value of the enrolled land during the period the land is subject to the easement less the fair market value of the land encumbered by the easement for permanent easements or easements for the maximum duration allowed under State law.  For 30-year easements and 30-year contracts, there is no lower limit that the NRCS can accept for a reduced offer.

B.  Upon application, the landowner will receive program information to assist in deciding whether to continue with the application process, including a list of the documentation that must be provided prior to NRCS taking any action on the application.

(1)  When the application is for a permanent or 30-year easement, the following items must be provided to the applicant:

(i)  A sample copy of a blank Form NRCS-CPA-260, “HFRP Conservation Easement Deed” (Subpart I, Exhibits, Section 511.109).  The HFRP Conservation Easement Deed is the document used by a landowner to grant and convey to NRCS an easement with a right of access to the easement area.  Revisions to the HFRP Conservation Easement Deed are not permitted.  An addendum may be added to the document for special requirements that may warrant some individual reference, such as a special instance under State law, but only if it is approved by the national program manager and Deputy Assistant General Counsel, Natural Resources Division, Office of General Counsel. 

(ii)  Notification that the landowner must be the owner of title.

(iii)  A sample copy of Form AD-1158, “Subordination Agreement and Limited Lien Waiver” (Subpart I, Exhibits, Section 511.110).  The Subordination Agreement and Limited Lien Waiver is used to subordinate mortgages and obtain limited lien waivers, when applicable, to the United States with respect to any and all interests of the subordinating party in or related to the easement area.  The form will be recorded with the Conservation Easement Deed.

(iv)  A sample copy of Form AD-1157, “Option Agreement to Purchase.”  (Subpart I, Exhibits, Section 511.105) must be signed by the landowner and the State Conservationist before NRCS proceeds with incurring costs for surveys and closing procedures on the easement.  The Option Agreement to Purchase is the obligating document for easement acquisition funds only.

(2)  When the application is for a 30-year contract, information provided to the landowner must include notification that the landowner must be the owner of title.

(i)  The agreement to enter a 30-year contract and the 30-year easement deed for land use documents are being developed.

(ii) Notify the national HFRP manager if you have any applications for 30-year contracts.

(3)  When the application is for a 10-year restoration agreement, information provided to the applicant must include a blank sample copy of Form AD-1154, “Long-Term Agreement” (Subpart I, Exhibits, Section 511.103).

511.23  Landowner Eligibility

A.  To be eligible to enroll an easement in the HFRP, an applicant must—

(1)  Be the owner of eligible land for which enrollment is sought.

(2)  Agree to provide such information to NRCS as the agency deems necessary or desirable to assist in its determination of eligibility for program benefits and for other program implementation purposes.

Note:  Unlike other NRCS programs, the adjusted gross income, highly erodible land, and wetlands conservation provisions are not part of the landowner eligibility requirements for HFRP.

B.  Landowner Information for Easements

(1)  Applicants for easements must be able to convey clear title to the land and be able to provide consent or subordination agreements from each holder of a security interest in the land.  Landowners must be willing and able to grant NRCS or its designee written recorded access to the easement area for restoration, management, maintenance, monitoring, and enforcement purposes.  This includes securing access from neighboring lands at landowner expense, when applicable.

(2)  Before NRCS will move the application forward in the enrollment process, the landowner must provide NRCS with a copy of the documents by which the landowner took title to the easement area, including proof of the ability to provide a legal, written, recordable access to the proposed enrollment area.  This is necessary for NRCS to determine if the landowner is eligible to participate in the program.  When the landowner is a legal entity, these documents include—

(i)  Copies of organizational and other supporting documents, such as—

·          Articles of incorporation

·          Corporate bylaws

·          Partnership agreements

·          Trusts papers

·          Conservatorships

(ii)  Proof of who has authority to sign on behalf of the legal entity, such as—

·          Power of attorney

·          Corporate officers

·          Trustee appointment

·          Conservator appointment

(iii)  Proof the entity is a legal and valid entity in the State where the land is located, usually by a certificate of good standing from the Secretary of State.

C.  Eligibility for 30 Year Contracts

D.  Eligibility for Restoration Agreements

(1)  For a landowner to be eligible and participate in the program, he or she must—

(i)  Provide ownership of the property. 

(ii)  Agree to provide any other necessary information to NRCS for landowner eligibility determination.

(2)  For an operator (tenant) to be eligible and participate in the program, he or she must provide written concurrence from the landowner of tenancy for the period of the HFRP restoration agreement.

E.   Preliminary Investigations

(1)  Once it is determined that the landowner is eligible for enrollment and the information required by Section 511.22(B) of this manual has been provided and determined to be adequate by NRCS, the application will be ranked. 

(i)  Highest-ranked applications will be preapproved at the State level. 

(ii)  If an easement application is preapproved, the agency will have a preliminary title search, and a hazardous substance record search conducted.  In some cases a title commitment binder may be ordered along with the preliminary title search.

(2)  The purpose of the preliminary title search is to determine if there are title issues that would preclude or delay closing the easement.  If issues are identified, the application will not be moved forward in the enrollment process until the landowner can provide adequate written assurances that unacceptable title defects can be eliminated at or before closing.  NRCS will determine what constitutes “adequate assurances.”

(3)  The hazardous substance records search is the first part of the environmental due diligence (all appropriate inquiry) to ensure there are no potential hazardous substance issues that would preclude or delay enrollment of the land in HFRP.  NRCS will not enroll property where hazardous substance concerns are identified and are determined by NRCS to pose an unacceptable risk or are sufficient to make restoration not feasible.  Once the hazardous substance records search is complete, NRCS will complete the HFRP Hazardous Substance Examination Checklist (Subpart I, Exhibits, Section 511.101) to assess any potential environmental hazards. If further environmental investigation is needed, the State Conservationist may procure a Phase I Environmental Assessment using an environmental professional. Consult with the national program manager for additional guidance.

(4)  Generally, NRCS will secure preliminary title search services from nongovernmental professional sources.  These services will be procured at the State level by using an appropriate contracting method.  Task orders for services and funds will be obligated directly to the contractor or vendor providing the services.  States may use the national BPA or solicit for these services using appropriate contracting methods.

511.24  Land Eligibility

A.   Eligible Land

Land must be privately owned or acreage owned by Indian Tribes to be eligible for enrollment in HFRP.  NRCS, in coordination with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS), determines whether land is eligible for enrollment and whether, once found eligible, the lands may be included in the program based on the likelihood of successful restoration, enhancement, and protection of forest ecosystem functions and values when considering the costs of enrollment, restoration, protection, enhancement, maintenance, and management.

(i)  Land will be considered eligible for enrollment in the HFRP only if NRCS determines that at least one of the following applies:

·          Such private land is capable of supporting habitat for a selected species listed under section 4 of the Endangered Species Act of 1973 (ESA).

·          Such private land is capable of supporting habitat for a selected species that is not listed under section 4 of the ESA, but is a candidate for such listing, or the selected species is a State-listed species, or is a species identified by the Chief for special consideration for funding.

(ii)  NRCS may also enroll land adjacent to eligible land if the enrollment of such adjacent land would contribute significantly to the practical administration of the easement area.  NRCS will not enroll more land than it determines is necessary for such contribution.

(iii)  To be enrolled in the program, eligible land must be configured in a size and with boundaries that allow for the efficient management of the area for easement purposes and otherwise promote and enhance program objectives.

(iv)  In the case of acreage owned by an Indian Tribe, the NRCS may enroll acreage.

B.  Ineligible Land

The following land is not eligible for enrollment in the HFRP:

(i)  Land owned by the United States, States, or units of local government

(ii)  Land subject to an easement or deed restriction that already provides for the protection of wildlife habitat or that would interfere with HFRP purposes, as determined by NRCS

(iii)  Lands that would not be eligible for HFRP under Section 511.23 of this manual.

C.  Notification of Ineligibility

Applicants found to be ineligible for participation in the HFRP will be notified in writing by the State Conservationist with 30 days of the determination of their status and advised of any applicable appeal rights. 

511.30  Overview

This subpart provides guidance for establishing and implementing the ranking criteria for the Healthy Forests Reserve Program (HFRP).

511.31  Establishing State Ranking Criteria

A.  Purpose

(1)  The ranking process will enable the State Conservationist to prioritize enrollment offers by determining the projects that most merit enrollment.  However, such ranking does not vest any right or entitlement to funding by an applicant.

(2)  The State Conservationist will establish a weighted ranking process to prioritize all eligible applications considering the factors described in section 511.31B.  Priority will be given to those applications that rank highest.

B.  Ranking Considerations

(1)  Based on the specific criteria set forth in the signup announcement and applications for participation, NRCS, in coordination with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), may consider the following factors to rank properties:

(i)  Estimated conservation benefit to habitat required by threatened or endangered species listed under section 4 of the Endangered Species Act (ESA)

(ii)  Estimated conservation benefit to habitat required by species that are not listed as endangered or threatened under section 4 of the ESA, but which are candidates for such listing, State-listed species, or species identified by the Chief for special consideration for funding

(iii)  Estimated improvement of biodiversity, if enrolled

(iv)  Potential for increased capability of carbon sequestration, if enrolled

(v)  Availability of contribution of non-Federal funds

(vi)  Significance of forest ecosystem functions and values

(vii)  Estimated cost effectiveness of the particular restoration cost-share agreement, contract, or easement, and associated HFRP restoration plan

(viii)  Other factors identified in the HFRP signup notice

(2)  The NRCS may place higher priority on certain forest ecosystems based on regions of the State or multistate area where restoration of forestland may better achieve NRCS programmatic and signup goals and objectives.

(3)  Notwithstanding any limitation of this part, NRCS may enroll eligible lands at any time in order to encompass project areas subject to multiple land ownership or otherwise to achieve program objectives.  Similarly, NRCS may, at any time, exclude otherwise eligible lands if the participation of the adjacent landowners is essential to the successful restoration of the forest ecosystem and those adjacent landowners are unwilling to participate.

(4)  If available funds are insufficient to accept the highest-ranked application and the applicant is not willing to reduce the number of acres offered to match available funding, NRCS may select a lower-ranked application that can be fully funded.  In cases where HFRP funds are not sufficient to cover the costs of an application selected for funding, the applicant may lower the cost of the application by changing the duration of the easement or agreement or reducing the acreage offered, unless these changes result in a reduction of the application ranking score below that of the score of the next available application on the ranking list.

511.32  Ranking Process

A.  The ranking process will be conducted by NRCS in coordination with FWS or NMFS, to determine eligibility of the proposed enrollment area and develop the preliminary restoration plan.

(1)  Once the field evaluation is completed, the field office will submit the following to the State office:

(i)  Application for participation in the HFRP (Form NRCS-CPA-1200);

(ii)  Evidence of ownership (deed);

(iii)  Aerial photo or an aerial plan map showing existing land use and practices;

(iv)  Soil map;

(v)  Location map for the property;

(vi)  Topographic map;

(vii)  Completed ranking form, including input provided by FWS or NMFS representative, if applicable;

(viii)  Amount of any voluntary landowner offer to accept a reduced per-acre easement value;

(ix)  Partnership pledges to provide financial assistance;

(x)  List of planned conservation practices, measures and activities, estimated quantities, and estimated costs, if applicable;

(xi)  Other items specified on State application checklists, such as documentation of water rights.

(2)  Maps, preliminary restoration plans, and applicable worksheets can be developed using Customer Service Toolkit and stored in the National Conservation Planning database or other agency-approved conservation planning software.

(3)  State offices will organize, analyze and approve all ranking forms that have been completed at the field level and select the highest-ranked applications for funding. 

511.40  Overview

A.  This subpart provides administrative activities and policy related to the enrollment of 10-year restoration cost-share agreements, 30-year contracts, and 30-year and permanent easements.

B.  The enrollment and acquisition process will proceed only after the landowner and the land have been determined to be eligible and the onsite visit, including ranking and preparation of the preliminary Healthy Forests Reserve Program (HFRP) restoration plan, has been completed.

511.41  Selection for Enrollment

A.  Tentative Selection.—Based on the priority ranking, NRCS will notify an affected landowner of tentative acceptance into the program.  This notice of tentative acceptance does not bind NRCS or the United States to enroll the proposed project in HFRP or bind the landowner to convey an easement or to contract or agree to HFRP activities.  The letter merely notifies the landowner that NRCS intends to continue the enrollment process on their land unless otherwise notified by the landowner.

(1)  Restoration Cost-Share Agreements

For restoration 10-year cost-share agreement enrollments, a local NRCS representative will contact the landowner to confirm that the landowner wishes to continue with the enrollment process.  If so, NRCS will set up an appointment to begin the process of completing the final 10-year restoration plan. 

(2)  Easements and 30-year Contracts

If the project that is tentatively selected for funding is an easement or 30-year contract that requires an appraisal, the affected landowners will be sent a letter of tentative selection by certified mail with return receipt requested.  The letter will clearly explain that this tentative selection does not bind NRCS or the United States to enroll the proposed project in HFRP or bind the landowner to continue with enrollment in the program.  However, the landowner’s acceptance of the tentative selection is required prior to NRCS proceeding with acquiring an appraisal.  Once NRCS has received an acceptable appraisal, the agency may proceed with making an offer of enrollment to the landowners, as provided in paragraph C of this section.

(3)  Expedited Delivery of Notification of Tentative Selection.—To expedite the enrollment process, the notice of tentative selection may be delivered in person to the landowner.  Document in the case file that the notice was delivered in person.

(4)  Applications Not Tentatively Selected

(i)  All applications not selected for funding will be deferred to the next funding period, through the term of the Farm Bill under which they applied.  Applicants determined as not eligible or cancelled applications will not be deferred.

(ii)  Notify all applicants in writing of their status within 30 days of the selections for tentative funding.  The notification must request that applicants who do not wish to continue to be considered for HFRP notify the local NRCS office within 15 days of receipt of the letter.  Letters must be sent certified mail with return receipt requested.

(iii)  Applications carried forward into the next fiscal year are considered applications for that fiscal year’s enrollment and numbered accordingly.

(5)  Preliminary Title Search and Environmental Due Diligence.—Once the landowner confirms his or her intent to continue, NRCS will order preliminary title search (for easement applications) and a hazardous substance record search.  In some cases, a title commitment binder may be ordered along with the preliminary title search.

(i)  The purpose of the preliminary title search is to determine if there are title issues that would preclude or delay closing the easement.  If issues are identified, the application will not be moved forward in the enrollment process until the landowner provides adequate written assurances that unacceptable title defects can be eliminated at or before closing.  NRCS will determine what constitutes “adequate assurances.”

(ii)  The hazardous substance records search is the first part of the environmental due diligence (all appropriate inquiry), the purpose of which is to ensure there are no potential hazardous substance issues that would preclude or delay enrollment of the land in HFRP.  NRCS will not enroll property where hazardous substance concerns are identified and are determined by NRCS to pose an unacceptable risk or are sufficient to make restoration unfeasible.

B.  Ordering Appraisals.—If the landowner has agreed to continue and no problems are discovered during the preliminary title search and due diligence, an appraisal will be ordered for tentatively selected easements and 30-year contracts.  Follow guidance provided in Subpart F, “Easement Valuation”; Subpart I, Exhibits, Section 511.102, “Appraisal Specifications for Appraising Real Property for HFRP”; and Subpart I, Exhibits, Section 511.114, “Technical Appraisal Review Specifications for Appraising Real Property for HFRP.

C.  Offer of Enrollment

Upon selection of an application for funding, NRCS will send the landowner a letter offering enrollment.  The actual wording of the letter will depend upon the enrollment type of the selected application, the actions necessary for the application to be considered enrolled in the program, and funds obligated.

(i)  Restoration Cost-Share Agreements

·          For restoration cost-share agreement enrollments, the letter must clearly state that the landowner must contact the local NRCS representative to confirm the landowner wishes to continue with the enrollment process.  The letter must also inform the landowner that he or she must set up an appointment with NRCS to begin reviewing the final Healthy Forests Restoration plan of operations, including all required final engineering surveys, designs, and plans. 

·          The letter of offer of enrollment must indicate that NRCS will consider the property enrolled and funds obligated once a final Conservation Program Contract (CPC), Form NRCS-AD-1154 (Subpart I, Exhibits, Section 511.115) with attachments, and Form NRCS-CPA-1155 (Subpart I, Exhibits, Section 511.116) are signed by both the landowner and the State Conservationist.

·          All landowners of record must sign Form NRCS-AD-1154, Long Term Agreement, unless documentation is provided indicating that all landowners have authorized a specific individual to act as their representative in the execution and completion of the agreement. 

(ii)  Thirty-Year Contracts

·          The letter must clearly state that the application has been selected for enrollment and that NRCS is making an offer to enroll the land in a 30-year contract for the compensation amount indicated in the letter.  The letter must also state that continuing the enrollment process is contingent on the applicant returning the “Agreement to Enter Contract for 30-Year Land Use” document attached to the letter with all appropriate signatures within the time period specified in the letter.  This will signify that the landowner accepts the offered compensation in return for enrollment.  Generally, the landowner is allowed 15 days to sign and return the document.  This deadline may be adjusted by the State Conservationist.

·          If the agreement is not signed and post marked within the required time period, the application will be cancelled.  Once the “Agreement to Enter Contract for 30-Year Land Use” document is returned and signed by the State Conservationist, the property is considered enrolled in HFRP and funds are obligated for the 30-year contract compensation amount only.  Note: Survey funds are also obligated at this time.

(iii)  Easements

·          The letter must clearly state that the application has been selected for enrollment and that NRCS is making an offer to purchase the easement at the compensation amount indicated on Form AD-1157, “Option Agreement to Purchase,” (Subpart I, Exhibits, Section 511.105) which will be attached to the letter.

·          The letter must also indicate that continuing the enrollment process is contingent upon the landowner returning the Form AD-1157 with all appropriate signatures within the time period specified in the letter.  The landowner is allowed 15 days to sign and return the document.  If the form is not signed and post marked within the required time period, the application will be cancelled.  Once the Form AD-1157 is returned and signed by the State Conservationist, the property is considered enrolled in HFRP and funds are obligated for the easement acquisition only.

Note:  If the landowner is going to secure the legal boundary survey, survey funds are also obligated at this time.

·          The agreement for the purchase of a conservation easement has an effective period of 6 to 12 months from the date the State Conservationist signs it.  The effective period may be extended when necessary and agreed to by all parties using Form AD-1157A, “Option to Purchase Amendment.”

·          The State Conservationist may delegate, in writing, the authority to sign the option to purchase, the 30-year contract, or the CPC for a restoration cost-share agreement enrollment.  This authority may only be delegated to the assistant State conservationist responsible for managing the HFRP.  No further delegation of this authority is allowed.

511.42  Acceptance of Offer of Enrollment

A.  An agreement to purchase or a restoration cost-share agreement or contract will be presented by NRCS to the landowner.  This document will describe the easement, agreement, or contract area; the easement, agreement, or contract terms and conditions; and other terms and conditions for participation required by NRCS.

B.  Effect of Acceptance of the Offer.—After the agreement to purchase, restoration cost-share agreement, or contract is executed by NRCS and the landowner, the land is considered enrolled in the HFRP.

(1)  For easements, NRCS will proceed with various easement acquisition activities, which may include conducting a survey of the easement area, securing necessary subordination agreements, procuring title insurance, and conducting other activities necessary to record the easement or implement the HFRP, as appropriate for the enrollment option being considered.

(2)  For restoration cost-share agreements and contracts, the landowner will proceed to implement the restoration plan with technical assistance and cost sharing from NRCS.

511.43  Withdrawal of Offers

At any time prior to execution of an agreement to purchase, a restoration cost-share agreement, or a contract between the United States and the landowner, NRCS may withdraw the land from enrollment due to lack of availability of funds, inability to clear title, or other reasons.  An agreement to purchase will be void, and the offer withdrawn, if not executed by the landowner within the time specified. 

511.44  Compensation for Easements and 30-Year Contracts

A.  Determination of Easement Payment Rates

(1)  NRCS must offer to pay at least 75 percent but no more than 100 percent of the fair market value of the enrolled land during the period the land is subject to the easement, less the fair market value of the land encumbered by the easement, for permanent easements or easements for the maximum duration allowed under State law.

(2)  NRCS must offer to pay at least 75 percent of the fair market value of the enrolled land, less the fair market value of the land encumbered by the easement, for 30-year easements or 30-year contracts.

(3)  When determining easement values, appraisers must consider the restriction of the HFRP restoration plan and easement deed on forest productivity and economic impacts.

B.  Acceptance and Use of Contributions

NRCS may accept and use contributions of non-Federal funds to make payments under this section.

C.  Acceptance of Offered Easement or 30-Year Contract Compensation

(1)  NRCS will not acquire any easement or 30-year contract unless the landowner accepts the amount of the payment that is offered by NRCS.  The payment may or may not equal the fair market value of the interests and rights to be conveyed by the landowner under the easement or 30-year contract.  By voluntarily participating in the program, the landowner waives any claim to additional compensation based on fair market value.

(2)  Payments may be made in a single payment or no more than 10annual payments of equal or unequal size, as agreed to by NRCS and the landowner.

D.  If a landowner believes he or she may be eligible for a bargain-sale tax deduction (that is the difference between the fair market value of the easement conveyed to the United States and the easement payment made to the landowner), the landowner must discuss the matter with the Internal Revenue Service.  NRCS disclaims any representations concerning the tax implications of any easement or cost-share transaction.

E.  Per-Acre Payments

If easement payments are calculated on a per-acre basis, the stated easement payment will be adjusted based on final determination of acreage.

F.  Ecosystem Services Credits for Conservation Improvements

(1)  USDA recognizes that environmental benefits will be achieved by implementing conservation practices and activities funded through HFRP and that environmental credits may be gained as a result of implementing activities compatible with the purposes of an HFRP easement, 30-year contract, or restoration cost-share agreement.  NRCS asserts no direct or indirect interest in these credits.  However, NRCS retains the authority to ensure the requirements of an HFRP easement, contract, cost-share agreement, or restoration plan are met

(2)  Where activities required under an environmental credit agreement effect land covered under an HFRP easement, restoration cost-share agreement, or 30-year contract, participants are encouraged to request a compatibility assessment from NRCS prior to entering into such agreements. 

511.45  Compensation for 10-Year Restoration Cost-Share Agreements

A.  The restoration plan developed under Section 511.4 forms the basis for the 10-year cost-share agreement and its terms are incorporated therein.

B.  A 10-year cost-share agreement will—

(1)  Incorporate all portions of a restoration plan.

(2)  Be for a period of 10 years.

(3)  Include all provisions required by law.

(4)  Specify the requirements for operation and maintenance of applied conservation practices.

(5)  Include any participant reporting and recordkeeping requirements to determine compliance with the agreement and HFRP.

(6)  Be signed by the participant.

(7)  Identify the amount and extent of cost-share assistance that NRCS will provide for the adoption or implementation of the approved conservation treatment identified in the restoration plan.

(8)  Include any other provision determined necessary or appropriate by the NRCS representative.

C.  Once the participant and NRCS have signed a 10-year cost-share agreement, the land is considered enrolled in HFRP.

D.  The State Conservationist may, by mutual agreement with the parties to the 10-year cost-share agreement, consent to the termination of the restoration agreement where any of the following apply:

(1)  The parties to the 10-year cost-share agreement are unable to comply with the terms of the restoration agreement as a result of conditions beyond their control.

(2)  Compliance with the terms of the 10-year cost-share agreement would cause a severe hardship to the parties to the agreement.

(3)  Termination of the 10-year cost-share agreement would, as determined by the State Conservationist, be in the public interest.

E.  If a 10-year cost-share agreement is terminated in accordance with the provisions of this section, the State Conservationist may allow the participants to retain any cost-share payments received under the 10-year cost-share agreement in a proportion appropriate to the effort the participant made to comply with the restoration agreement, where forces beyond the participant’s control prevented compliance. 

511.46  Cost-Share Payments

A.  NRCS may share the cost with landowners of restoring land enrolled in HFRP as provided in the HFRP restoration plan.  The HFRP restoration plan may include periodic manipulation to maximize fish and wildlife habitat and preserve forest ecosystem functions and values.  It may also include measures needed to provide the landowner protections under section 7(b)(4) or section 10(a)(1) of the ESA, including the cost of any permit.

B.  State Conservationists (STCs), in coordination with the FWS, will determine what practices and measures are necessary to restore, enhance, and maintain healthy forests and will submit the list of conservation practices and measures eligible for cost sharing.

C.  STCs will establish average costs for approved HFRP practices and measures, including costs for obtaining permits necessary for participants to receive landowner protections.  Permit costs will be eligible for reimbursement based on flat rates determined by STCs.

D.  STCs will submit a list of practices and the average cost for each practice or measure to the Director, Easement Programs Division, for approval.  This list will be limited to no more than 10 practices and measures.

E.  Approved practices and measures are only eligible for cost sharing for the initial restoration or enhancement of the required habitat conditions for the species, not to exceed the first 10 years of the restoration agreement or easement.  Thereafter, HFRP participants are responsible for maintaining required habitat conditions.

F.  Failure to perform planned management activities can result in violation of the easement, 10-year cost-share agreement, or the agreement under which landowner protections have been provided.  NRCS will work with landowners to plan appropriate management activities.

G.  The amount, terms, and conditions of the cost-share assistance is subject to the following restrictions on the costs of establishing or installing NRCS-approved conservation practices or implementing measures specified in the HFRP restoration plan:

(1)  On enrolled land subject to a permanent easement or an easement for the maximum duration allowed under State law, NRCS must offer to pay at least 75 percent but no more than 100 percent of the average cost.

(2)  On enrolled land subject to a 30-year easement or 30 year contract, NRCS must offer to pay no more than 75 percent of the average cost.

(3)  On enrolled land subject to a 10-year cost-share agreement without an associated easement, NRCS must offer to pay no more than 50 percent of the average costs.

H.  Cost-share payments may be made only upon a determination by NRCS that an eligible conservation practice or measure has been established in compliance with appropriate standards and specifications.  Identified conservation practices and measures may be implemented by the landowner or other designee.

I.  Cost-share payments may only be made to establish and install additional eligible conservation practices and measures or to maintain or replace an eligible conservation practice or measure if NRCS determines the practice or measure is needed to meet the objectives of HFRP, and the failure of the original conservation practices or measures was due to reasons beyond the control of the landowner.

511.47  Easement Participation Requirements (Permanent or 30-Year Easements)

A.  To enroll land in HFRP through a permanent easement, an easement for the maximum duration allowed under State law, or a 30-year easement, a landowner must grant an easement to the United States.  The easement deed must require that the easement area be maintained in accordance with HFRP goals and objectives for the duration of the term of the easement, including the restoration, protection, enhancement, maintenance, and management of habitat and forest ecosystem functions and values.

B.  For the duration of its term, the easement must require, at a minimum, that the landowner and the landowner's heirs, successors, and assigns cooperate in the restoration, protection, enhancement, maintenance, and management of the land in accordance with the easement and with the terms of the HFRP restoration plan.  In addition, the easement must grant the all of following rights to the United States, through the NRCS:

(1)  A right of access to the easement area by NRCS or its representative.

(2)  The right to determine and permit compatible uses on the easement area and specify the amount, method, timing, intensity, and duration of the compatible use, if such use is consistent with the long-term protection and enhancement of the purposes for which the easement was established.

(3)  The rights, title, and interest to the easement area, as specified in the conservation easement deed.

(4)  The right to perform restoration, protection, enhancement, maintenance, and management activities on the easement area.

C.  The landowner must convey title to the easement that is acceptable to the NRCS.  The landowner must warrant that the easement granted to the United States is superior to the rights of all others, except for exceptions to the title that are deemed acceptable by the NRCS.

D.  The landowner must—

(1)  Comply with the terms of the easement.

(2)  Comply with all terms and conditions of any associated agreement or contract.

(3)  Agree to the long-term restoration, protection, enhancement, maintenance, and management of the easement in accordance with the terms of the easement and related agreements.

(4)  Have the option to enter into an agreement with governmental or private organizations to assist in carrying out any landowner responsibilities on the easement area.

(5)  Agree that each person who is subject to the easement will be jointly and severally responsible for compliance with the easement and the provisions of this part and for any refunds or payment adjustment that may be required for violation of any terms or conditions of the easement or the provisions of this part.

511.48  Participant Requirements for 30-Year Contracts (Acreage Owned by Indian Tribes)

A.  To enroll land in HFRP through the 30-year contract option, a landowner must sign a 30-year contract with NRCS.  The contract must require that the contract area be maintained in accordance with HFRP goals and objectives for the duration of the term of the contract, including the restoration, protection, enhancement, maintenance, and management of habitat and forest ecosystem functions and values.

B.  For the duration of its term, the 30-year contract must require, at a minimum, that the landowner and the landowner's assignees cooperate in the restoration, protection, enhancement, maintenance, and management of the land in accordance with the contract and with the terms of the HFRP restoration plan.  In addition, the contract must grant all of the following rights to the United States, through the NRCS:

(1)  A right of access to the contract area by NRCS or its representative.

(2)  The right to allow such activities by the landowner as hunting and fishing, managed timber harvest, or periodic haying or grazing, if such use is consistent with the long-term protection and enhancement of the purposes for which the contract was established.

(3)  The right to specify the amount, method, timing, intensity, and duration of the activities listed in paragraph B(2) of this section, as incorporated into the terms of the contract.

(4)  The right to perform restoration, protection, enhancement, maintenance, and management activities on the contract area.

C.  The landowner must—

(1)  Comply with the terms of the contract.

(2)  Comply with all terms and conditions of any associated agreement or contract.

(3)  Agree to the long-term restoration, protection, enhancement, maintenance, and management of the contract area in accordance with the terms of the contract and related agreements.

D.  A 30-year contract must—

(1)  Be signed by the participant.

(2)  Identify the amount and extent of cost-share assistance that NRCS will provide for the adoption or implementation of the approved conservation treatment identified in the restoration plan.

(3)  Include any other provision determined necessary or appropriate by the NRCS representative.

E.  Once the landowner and NRCS have signed a 30-year contract, the land is considered enrolled in HFRP.

511.49  Transfer of Land

A.  Offers Voided Prior to Enrollment

Any transfer of the property prior to the applicant's acceptance into the program voids the offer of enrollment.  At the option of the State Conservationist, an offer may be extended to the new landowner if the new landowner agrees to the same or more restrictive easement, agreement, and contract terms and conditions. 

B.  Actions Following Transfer of Land

(1)  For easements or 30-year contracts with multiple annual payments, any remaining payments will be made to the original landowner unless NRCS receives an assignment of proceeds.

(2)  Eligible cost-share payments will be made to the new landowner upon presentation of an assignment of rights or other evidence that title has passed.

(3)  Landowner protections will be available to the new landowner and the new landowner will be held responsible for assuring completion of all measures and conservation practices required by the contract, deed, and incidental take permit.

(4)  If a safe harbor agreement or candidate conservation agreement with assurances is involved, the previous and new landowners must coordinate with FWS or NMFS, as appropriate, to transfer the agreement and associated permits and assurances.

(5)  The landowner and NRCS may agree to transfer a 30-year contract.  The transferee must be determined by NRCS to be eligible to participate in HFRP and must assume full responsibility under the contract, including operation and maintenance of all conservation practices and measures required by the contract.

511.50  Legal Boundary Survey

A.  General

As an integral part of the easement acquisition, the boundary of the proposed enrollment must be delineated in a manner that is suitable for recording.  At a minimum, State code must be followed (exact recording requirements vary from State to State).  In some instances, the minimum State and local recording requirements may not be sufficient to meet program objectives; in those situations, NRCS policy and requirements take precedence.

B.  NRCS Policy

(1)  After the “Option Agreement to Purchase a Conservation Easement” form (LTP-31) has been signed by the landowner and NRCS, a legal boundary survey must be ordered.  Legal boundary surveys must be conducted on all easement enrollments.

(i)  The funds for the survey will not be obligated to each individual application.  The surveys will be obtained using an appropriate procurement method, and funds will be obligated to the procurement document for the surveys.

(ii)  It is recommended that States use a blanket purchase agreement or indefinite delivery or indefinite quantity type arrangement.  Funds would be obligated as surveys are ordered through a task order process.

(2)  In some cases, it may be more cost effective for the landowner to secure the legal boundary survey.  If this option is used, the landowner must secure a written bid for the survey from a State-certified and licensed professional surveyor that is based on the specifications in Subpart I, Exhibits, Section 511.113.  This bid must be provided to NRCS prior to NRCS signing the “Agreement for the Purchase of a Conservation Easement” form.  The funds for the survey will be obligated to the landowner as the vendor at the same time funds are obligated for the easement compensation.

(3)  NRCS will ensure all easement boundaries surveys are completed and digitized in accordance with the specifications in Subpart I, Exhibits, Section 511.113.  These specifications must be used unless the national program manager approves an alternate method.  Use of these specifications ensures a consistent product nationally and allows for the most efficient manner of uploading the data to the national HFRP boundary shapefile maintained by the National Cartographic and Geospatial Center (NCGC) in Fort Worth, TX.

(4)  Knowing exactly where the enrolled acres are located assists NRCS with monitoring and management to protect the Federal property investment.  Transmit digitized boundaries to the NCGC through the Web-based easement business tool.  In combination with others, these digital layers support local, regional, and national program management and ecosystem planning.

C.  Acceptance of Survey

(1)    NRCS will review the survey description to ensure it accurately and correctly describes the area of enrollment.

(2)  For easement enrollment, when the survey has been accepted as properly completed and accurate, a Form AD-1157A, “Contract For Sale Amendment,” will be necessary to reflect the official enrollment acres indicated by the survey.  Any changes on the Form AD-1157A will be completed in accordance with Section 511.41.  Once the Form AD-1157A is signed by the landowners and the State Conservationist, the obligation will be adjusted in the Foundation Financial Information System (FFIS), as necessary.  The enrollment will then begin the closing process. 

Note:  Payment will not be made for the route of ingress or egress to the same landowner who is selling the HFRP easement.  Under some unusual circumstances, minor compensation may be offered to affected adjacent landowners when they must give an easement for ingress and egress to the HFRP site.  The State Conservationist should contact the national program manager and the Office of General Counsel (OGC) in Washington, DC, for guidance and approval.

511.51  Baseline Property Inventory Report

A.  Upon completion of the boundary description, NRCS will complete a Baseline Property Inventory Report, which will serve as Exhibit B of the HFRP conservation easement deed.  This report will verify that the characteristics, current use, and status of improvements on the property at the date of the agreement are recorded to ensure that any future changes in the use of the property are consistent with the terms of the easement.  Information collected during the development of the Baseline Inventory Report may be used to update the HFRP restoration plan.

B.  The Baseline Property Inventory Report is required for all easements.  The report must—

(1)  Document the conservation values, characteristics, current use, water rights, and improvements on the date of the easement.

(2)  Be signed and acknowledged as accurate by NRCS and the landowner and attached to, and recorded with, the HFRP conservation easement deed.

(3)  Include photographs, description of the plant community, and other physical characteristics of the land such as soils, topography, presence of noxious weeds, and invasive species.

(4)  Identify critical nesting habitat for target species.

(5)  Identify the location of all physical structures and improvements, including barns, sheds, corrals, fences, ponds, watering facilities, and roads.  Locating with GPS is preferred.

C.  The baseline documentation report will be used by NRCS to ensure that any future changes in the use of the property are consistent with the terms of the easement.  It documents the current condition of forestland resources, and references the HFRP restoration plan for any planned restoration but it does not preclude the use of other evidence to establish the condition of the property at the time the easement was conveyed.

511.52  Closing

A.  Closing Agents

(1)  The term “closing agent” refers to title companies, escrow companies, qualified private attorneys, abstracters, or Federal employees familiar with the preparation of such evidence in the jurisdiction in which the lands are situated, that conduct activities for NRCS associated with the execution and recordation of the warranty easement deed.  These activities will include—

(i)  Obtaining title commitment binder and title insurance.

(ii)  Obtaining signatures on Form NRCS-CPA-260, “HFRP Conservation Easement Deed.”

(iii)  Obtaining signatures on Form AD-1158, “Subordination Agreement and Limited Lien Waiver(s).”

(iv)  Working with landowners to clear title defects to the property that are unacceptable to NRCS.

(v)  Recording easements and other documents.

(vi)  Other functions as necessary or that may be required by State law to finalize the easement transaction as detailed in the scope of work.

(2)  The State Conservationist will work with the regional OGC to develop a work order for acquiring closing agents.  OGC will ensure that the work order lists all necessary closing agent qualifications and conditions, such as errors and omissions insurance, and identify closing agent responsibilities to develop closing instructions.  The State Conservationist will ensure that the closing agent is qualified and certified by law to perform the required services in the State in which the land lies and is experienced, financially responsible, and reputable.

(3)  Closing agent services may be acquired by Federal contract, interagency agreements, cooperative agreements, or other methods, as appropriate.  It is recommended that States use a blanket purchase agreement or an indefinite delivery, indefinite quantity type arrangement.  Costs for closing services may not exceed what is considered fair and reasonable.  Funds for the closing services will not be obligated to each individual application.  Closing services will be secured through an appropriate procurement method, and funds will be obligated directly to that procurement document.  Funds would be obligated as closing services are ordered, through a task order process.

(4)  Form AD-1157, “Option Agreement to Purchase,” states that NRCS may provide payment to the landowner through an escrow account managed by the NRCS closing agent.  The landowner approves the payment to the escrow account through the execution of Form AD-1157, and therefore a separate assignment of payment form does not need to be executed by the landowner.  NRCS will send a letter to the landowner notifying the landowner of the identity of the closing agent selected to handle the easement transaction.  The financial officer will identify the escrow account as an alternate payee in FFIS.  The closing agent will handle the funds in the escrow account in accordance with the NRCS closing instructions and OGC preliminary title opinion for ultimate disbursement of the proceeds to the landowner.

B.  Title Insurance

(1)  Closing agents must submit an American Land Title Association (ALTA) Closing Protection Letter or its equivalent.  ALTA title insurance on the U.S. ALTA 9/28/91 policy form will be acquired on all easements, including the ingress-egress routes.  The closing agent must ensure that title insurance is acquired from a source qualified and authorized by law to issue title insurance policies and is approved by the State insurance commissioner or equivalent in the State in which the land is located.

(2)  Title insurance may be acquired by Federal contract, interagency agreements, cooperative agreements, or other methods, as appropriate.  Costs for title insurance may not exceed what is considered fair and reasonable.  Prior to issuing title insurance, the title insurance company will issue a title commitment binder.  The title commitment binder results from a title search, lists exceptions to clear title, and binds the company to issue a final title policy.  The title commitment binder provides information for—

(i)  Execution of Form NRCS-LTP-23, “Certificate of Use and Consent.”

(ii)  Actions the landowner must take to resolve exceptions and provide clear title.

(iii)  Preparation of Form NRCS-CPA-260, “Healthy Forests Reserve Program Conservation Easement Deed.”

(iv)  Preparation of Form AD-1158, “Subordination Agreement and Limited Lien Waiver,” if necessary.

(3)  The title insurance policy will be written for the full amount of the easement acquisition payment or as provided by the Department of Justice in its Standards for the Preparation of Title Evidence in Land Acquisitions by the United States.  “The United States of America, by and through the Secretary of Agriculture” will be the insured.

C.  Easement Preparation

(1)  Upon receipt of the title commitment binder, NRCS will complete Form NRCS-LTP-23, “Certificate of Use and Consent,” with recommendations on those exceptions on title commitment binder that are —

(i)  Acceptable to NRCS.

(ii)  Not acceptable to NRCS and must be resolved by the landowner before easement can be recorded.

(2)  Form NRCS-CPA-260, “Conservation Easement Deed,” and Form AD-1158, “Subordination and Limited Lien Waiver(s),” will be prepared based on information received on the following:

(i)  Title insurance commitment binder

(ii)  Form NRCS-LTP-23, “Certificate of Use and Consent”

(iii)  Easement boundary and ingress-egress descriptions and Exhibits A, B, and C to Form NRCS-CPA-260, “Conservation Easement Deed,” when appropriate

(iv)  Appraisal, if required

(3)  Special provisions may only be inserted in the conservation easement deed for unique legal issues, as determined necessary by the national HFRP manager and the Office of General Counsel in Washington, DC.  Special provisions may not be used for management or similar uses.

D.  Transmitting Documents to OGC for Preliminary Title Opinion

(1)  Unless the regional OGC specifies otherwise, copies of the following documents will be assembled and transmitted to the OGC regional attorney for issuance of a preliminary title opinion:

(i)  Statement certifying landowner eligibility

(ii)  Unexecuted Form CPA-260, “Conservation Easement Deed”

(iii)  Unexecuted Form AD-1158, “Subordination Agreement and Limited Lien Waiver(s),” as appropriate

(iv)  Boundary description of the easement area and ingress-egress route (e.g., GPS and survey)

(v)  Map of easement area and ingress-egress route

(vi)  Preliminary certification of inspection and possession with attachments

(vii)  Form NRCS-LTP-23, “Certificate of Use and Consent,” with attachments

(viii)  Title commitment binder with copies of previously recorded documents

(ix)  Agreement for the purchase of a conservation easement

(x)  Other pertinent documents as requested by OGC

(2)  The OGC regional attorney will review the easement package and issue a preliminary title opinion and instructions.  (See sample OGC Preliminary Title Opinion.)  The preliminary title opinion will—

(i)  List exceptions to clear title, if any, that must be resolved prior to recording the easement and making payment to the landowner.

(ii)  Provide closing instructions.

(iii)  Authorize recording of easement and subsequent payment to the landowner pursuant to paragraphs (i) and (ii) above.

E.  Perfecting the Easement

(1)  Upon receipt of the preliminary title opinion from OGC, NRCS will issue closing instructions to the closing agent and provide a copy of the OGC preliminary title opinion to local NRCS office.

(2)  If an escrow account will be used for closing, then NRCS will order the easement funds disbursed no more than 7 days prior to closing.

(3)  The closing agent must—

(i)  Acknowledge receipt of easement funds if appropriate.

(ii)  Acknowledge closing instructions, including OGC preliminary title opinion, and submit estimate of closing costs if appropriate.

(iii)  Contact the landowner to set a closing date and receive the landowner's closing instructions.

(iv)  Ensure that the landowner resolves all exceptions to clear title.

(v)  Secure all required signatures, including NRCS, on the “Conservation Easement Deed” form and the “Subordination Agreement and Limited Lien Waiver(s)” form.

Note:  The signature of NRCS on the conservation easement deed triggers the payment of the easement acquisition funds to the landowner.

(vi)  Record the easement and other supporting documents (“Conservation Easement Deed” form with easement boundary and ingress-egress descriptions attached and “Subordination Agreement and Limited Lien Waiver(s)” form)

(vii)  Pay recording fees

(viii)  Order final title insurance policy

(ix)  Transmit the original recorded easement documents, invoice for recording fees and closing services, and final title insurance policy to NRCS

(4)  Upon receipt of the recorded documents from the closing agent, NRCS will execute Form NRCS-LTP-22, “Final Certificate of Inspection and Possession,” to verify that nothing has changed concerning the condition of the enrolled land and that the ownership has not changed.  Payment will be processed to the closing agent for the closing services and fees.

(5)  Upon receipt of the final title insurance policy, NRCS will transmit copies of the recorded easement documents, final title insurance policy, and the Form NRCS-LTP-22 to the OGC regional attorney.

(6)  The OGC regional attorney will review the recorded easement documents, final title insurance policy, and Form NRCS-LTP-22 and issue a final title opinion.

511.60  Overview

A.  This subpart provides guidance related to the development of the Healthy Forests Reserve Program (HFRP) restoration plan and the requirements for obtaining landowner protections.

B.  Landowner protections are contingent upon the HFRP restoration plan and associated cost-share agreement or easement being properly implemented.  There is no requirement that HFRP participants obtain any landowner protections.

511.61  HFRP Restoration Plan Development and Landowner Protections

A.  For all HFRP easements, contracts, and 10-year restoration agreements, NRCS will develop an HFRP restoration plan.  In developing the HFRP restoration plan, NRCS must confer with the program participant and with the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), as appropriate.

B.  The HFRP restoration plan must specify the manner in which the enrolled land under easement, 30-year contract, or 10-year cost-share agreement will be restored, protected, enhanced, maintained, and managed to accomplish the goals of the program.

C.  Eligible restoration practices and measures may include land management, vegetative, and structural practices and measures that will restore and enhance habitat conditions for listed species, candidate, State-listed, and other species identified by the Chief for special funding consideration.

(1)  To the extent practicable, eligible practices and measures will improve biodiversity and optimize the sequestration of carbon through management that maintains diverse and high-quality native forests to accomplish the goals of the restoration plan.

(2)  NRCS, in coordination with FWS or NMFS, will determine the conservation practices and measures.

(3)  The State Conservationist will develop and make available to the public a list of eligible practices and will determine payment rates and cost-share percentages within statutory limits.

D.  The HFRP restoration plan must be developed using the NRCS Customer Service Toolkit software and stored in the National Conservation Planning Database.  Form NRCS-CPA-1155, “Conservation Plan or Schedule of Operations,” must be signed by the landowner and the NRCS designated conservationist.

511.62  Landowner Protections

A.  Landowner protections may be made available to landowners enrolled in the HFRP who agree, for a specified period, to restore, protect, enhance, maintain, and manage the habitat conditions on their land in a manner that is reasonably expected to result in a net conservation benefit that contributes to the recovery of listed species under the Endangered Species Act (ESA), candidate, or other species covered by this regulation.  These protections operate with lands enrolled in the HFRP and are valid for as long as the landowner is in compliance with the terms and conditions of such assurances, any associated permit, and the easement, contract, or restoration agreement.

B.  An HFRP participant who enrolls land in HFRP and whose conservation treatment results in a net conservation benefit for listed, candidate, or other species may request the following landowner protections:

(1)  Incidental Take Authorization

(i)  NRCS will extend to participants the incidental take authorization received by NRCS from FWS or NMFS through biological opinions issued as part of the interagency cooperation process under Section 7(a)(2) of the ESA.

(ii)  NRCS will provide assurances, as a provision of the restoration plan, that when a participant is provided authorization for incidental take of a listed species, NRCS will not require management activities related to that species to be undertaken in addition to or different from those specified in the restoration plan without the participant’s consent.

(iii)  The program participant will be covered by the authorization to NRCS for incidental take associated with restoration actions or management activities, if the landowner so desires, the incidental take may include return to baseline conditions at the end of the applicable period.

(iv)  Provided the landowner has acted in good faith and without intent to violate the terms of the HFRP restoration plan, NRCS will pursue all appropriate options with the participant to avoid termination in the event of the need to terminate an HFRP restoration plan that is being properly implemented.

(v)  If the 30-year contract or 10-year restoration cost-share agreement is terminated, any requested assurances, including an incidental take authorization under this section, provided by NRCS will be voided.  As such, the landowner will be responsible to FWS or NMFS for any violations of the ESA.

(2)  Safe Harbor Agreement (SHA) or Candidate Conservation Agreement with Assurances (CCAA)

(i)  NRCS will provide technical assistance to help participants design and use their HFRP restoration plan for the dual purposes of qualifying for HFRP financial assistance and as a basis for entering into a SHA or CCAA with FWS or NMFS and receiving an associated permit under section 10(a)(1)(a) of the ESA.

(ii)  In exchange for a commitment to undertake conservation measures, the landowner will receive a permit under section 10 of the ESA from FWS or NMFS authorizing incidental take of species covered by the SHA or CCAA that may occur as a result of restoration actions, management activities, or a return to baseline conditions at the end of the applicable period.

(iii)  All SHAs and associated permits issued by FWS or NMFS are subject to the Safe Harbor Policy jointly adopted by FWS and NMFS according to the regulations at 64 FR 32717 or applicable subsequently adopted policy.  SHAs with FWS also are subject to regulations at 50 CFR Section 17.22(c) for endangered species, 50 CFR Section 17.32(c) for threatened species, or applicable subsequent regulations. 

(iv)  All CCAAs and associated permits issued by FWS or NMFS are subject to the CCAA policy jointly adopted by FWS and NMFS according to the regulations at 64 FR 32706 or applicable subsequently adopted policy.  CCAAs with FWS are also subject to regulations at 50 CFR Section 17.22(d) for endangered species or, 50 CFR Section 17.32(d) for threatened species, or applicable subsequent regulations.

(v)  If the 30-year contract or 10-year restoration cost-share agreement is terminated, the landowner must notify and coordinate with FWS and NMFS or any other relevant party to the specific SHA or CCAA, as appropriate, for any modifications related to the SHA or CCAA.

511.63  Modification of the HFRP Restoration Plan

A.  The State Conservationist may approve modifications to the HFRP restoration plan that do not modify or void provisions of the easement, contract, restoration agreement, or landowner protections.  Such modifications must be consistent with applicable law.

B.  NRCS may obtain and receive input from the landowner and coordinate with FWS and NMFS to determine whether a modification to the restoration plan is justified.  Any modification must meet HFRP program objectives and result in equal or greater wildlife benefits and ecological and economic values to the United States.

C.  Modifications to the HFRP restoration plan that are substantial and affect provisions of the contract, restoration cost-share agreement, or landowner protections require agreement from the landowner, FWS, or NMFS, as appropriate.  Such modifications may require execution of an amended contract or 10-year restoration cost-share agreement and modification to the protections afforded by the safe harbor assurances.

511.70  Determining Easement Compensation

A.  All appraisals completed for the Healthy Forests Reserve Program (HFRP) must comply with the Uniform Standards of Professional Appraisal Practice (USPAP) and appraisal instructions as issued by NRCS.

B.  When an appraisal is completed, it must include an appraisal of the proposed easement area for the unencumbered land and an appraisal for the proposed encumbered land as of a current date of value.  The difference between these two values is the effect of the easement on the subject property.  All appraisals are completed as though the easement is perpetual even if the terms of the easement are less than perpetual.

            511.71  Authorized Official

The authorized official, for the purpose of reviewing an appraisal, is an employee who can independently fulfill the requirements of this part and who is not supervised or formally evaluated by any person authorized to process, negotiate, or approve any easement.  The authorized official may not be any person who is authorized to process, negotiate, or approve any easement.

511.72  Appraiser Qualifications

A.  To perform appraisals under this program, a real property appraiser must be a State-certified general real property appraiser or obtain a temporary practice permit in accordance with title XI of the Financial Institution’s Reform, Recovery, and Enforcement Act of 1989 (FIRREA) in the State or States where the subject property is located and be in good standing with the licensing authority where the credential was issued.  The appraiser must have demonstrated competency in compliance with USPAP in conducting appraisals of agricultural and timber properties with and without conservation easements of the requested type, and must provide documentation of appraisal education courses attended, including an eminent domain or conservation easements course.

B.  Before issuing any work order to an appraiser, the contracting official must determine that the appraiser selected meets the above requirements.  Assistance in the selection process is available from NRCS National Headquarters (NHQ).

511.73  Appraisal Reports

The contracting official must request all appraisal reports or appraisal services in writing from the appraiser by using the mandatory specifications for appraisals of real property for the HFRP and scope of work, “Appraisal Specifications for Appraising Real Property for HFRP.” (Subpart I, Exhibits, Section 102).  No changes are permitted in the appraisal specifications and scope of work for HFRP appraisals without prior written approval from NHQ.

Note:  The contracting officer will determine who will conduct the technical appraisal review.  The contracting officer must request all technical appraisal review reports in writing from the reviewer.  The contracting officer will give the selected technical review appraiser a copy of the material sent to the appraiser.  The assigned technical review appraiser must discuss the scope and timing of the assignment with the requesting contracting officer, as necessary.  The technical review appraiser, staff appraiser, or both must be available to answer any technical questions related to the appraisal process.

511.74  Information Provided by USDA/NRCS to the Appraiser

A.  Aerial photograph of the subject property with the location of the proposed easement area identified, proposed legal access to the proposed easement area identified, proposed easement boundary identified, and an estimate of the acres in the proposed easement identified.

B.  Legal description of subject property owned.

C.  Preliminary legal description of the proposed easement area (survey to be completed later).

Example:  “On attached aerial photograph, approximately 10.5 (outlined in dark ink) acres located in the NW ¼, NW 1/4 of Section 10 T55N R20W of 5th PM.”

D.  Aerial photograph indicating the location and acreage of any conservation agreement, contract, or easement of any type that is associated with the proposed easement area.

E.  If applicable, a copy of the completed Farm Service Agency (FSA) Form CCC-505, executed by the landowner for the crop base located on the proposed easement area.  This form will not be processed by FSA until the easement is closed.  The appraiser will verify the amount of crop base to be retired or moved on the proposed easement area and if any remaining crop base exists on the easement area.  The landowner will give NRCS documentation of production data.  Note:  Any crop base or allotment acquired by NRCS must be retired from Federal Government programs.

F.  Documentation provided to the appraiser by NRCS will identify the volume of irrigation water rights, if any, to be retained for the subject property in the after condition as necessary to ensure the function of the forestry operation and other habitat conservation values.

G.  Copy of Subpart B and 7 CFR Part 625, “HFRP Final Rule.”

H.  Recorded landowner’s name, address, and telephone number.

I.  Written permission from the landowner or an authorized representative authorizing the assigned appraiser to enter the property for appraisal purposes.

J.  Specific details of any existing easements, timber sale contracts, reservations, or other restrictions currently encumbering the subject property as provided by the landowner.

K.  Current information about the status of ownership, such as copies of deeds.

L.  Completed Preliminary Certificate of Inspection and Possession (Subpart I, Exhibits, Section 511.107) and the Hazardous Substance Examination Checklist (Subpart I, Exhibits, Section 511.101) and any available information pertaining to the probability of existence of hazardous substances that might be found on the property to be appraised.

M.  Documentation of water rights owned, including wells on the property to be appraised.

N.  Copy of HFRP conservation easement deed (Form NRCS-CPA-260).

O.  Copy of the completed HFRP forest management conservation plan for the proposed easement area and a copy of the restoration plan.

511.75  Appraisal Reviews

A.  All appraisals used for acquisition of HFRP easements under this section must undergo an appraisal review.  In no case will any offer to purchase be issued before meeting the following requirements.

B.  Technical reviews are performed by a qualified State-certified general appraiser, who assesses the quality of the appraisal report based upon compliance with Uniform Standards of Professional Appraisal Practice (USPAP) and NRCS appraisal instructions.  The reviewer also assesses the appraisal theory, methodology, and support used in completing the appraisal.

C.  All HFRP easement acquisition appraisals performed by a contractor must undergo a technical review in accordance with Subpart I, Exhibits, Section 511.114.  This review must be completed and the appraisal must be determined to be acceptable in accordance with this section before making any offer on the property.  Submit the technical review and a copy of the appraisal to the NHQ staff appraiser within 15 calendar days of receipt of the report.

D.  Technical reviews are required for all easement acquisitions with an NRCS acquisition of more than $1 million.  These appraisals and technical reviews will require a post review by the NHQ staff appraiser.

E.  Technical reviews may be completed through contracting, subject to the requirements contained herein and Subpart I, Exhibits, Section 511.114, “Technical Appraisal Review Specifications for Appraising Real Property for the Healthy Forests Reserve Program,”.  NRCS may enlist the help of partner agencies’ staff appraisers who are qualified to conduct a technical review.  Submit the technical review and a copy of the appraisal to the NHQ staff appraiser within 15 calendar days of receipt of the report.

Note:  Pursuant to the Economy Act, NRCS may choose to procure services from another Federal agency to conduct technical appraisal reviews.  A memorandum of agreement (MOA) between agencies may be implemented.  Such an MOA must include Subpart H, “Technical Appraisal Review Specifications for Appraising Real Property for the Healthy Forests Reserve Program,” and reporting requirements for the appraisal review.

F.  Qualifications for Technical Review Appraiser

In order to be a technical review appraiser under this program, the individual must—

(i)  Be a State-certified general real property appraiser in accordance with title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) and be in good standing with the licensing authority where the credential was issued.

(ii)  Have demonstrated competency in compliance with USPAP in conducting and reviewing appraisals of agricultural properties with and without conservation easements of the requested type.

(iii)  Provide the authorized official with documentation of appraisal education courses attended, which must include at least 40 classroom hours of training in performing technical appraisal reviews.

(iv)  The contracting official must determine the review appraiser selected meets the above requirements.  Assistance in the selection process is available from NHQ.

G.  Technical Appraisal Review Requirements

(1)  All technical appraisal review reports must be requested from the appraisal reviewer in writing by using the mandatory technical appraisal review specifications and scope of work (Subpart I, Exhibit, Section 511.115) , “Technical Appraisal Review Specifications for Appraising Real Property for the Healthy Forests Reserve Program”).  No changes are permitted in the technical appraisal review specifications and scope of work without prior written approval from NHQ.

(2)  Technical appraisal reviews and post reviews must be completed and the appraisal determined acceptable by the technical reviewer before any offer to purchase is issued.

(3)  The scope of work is a desk technical review to ensure that the appraisal meets the definition of an appraisal and to examine the appraisal to ensure that it meets applicable appraisal requirements, which include USPAP and NRCS appraisal instructions.

(i)  If multiple appraisals are submitted on a property, a technical review will be completed on each appraisal.

(ii)  The technical appraisal review must comply with USPAP Standard 3, must be typewritten and dated, must be signed by the reviewer, and must be in compliance with the technical appraisal review specifications and scope of work, Subpart I, Exhibits, Section 511.115.

(iii)  The review appraiser will be required to determine that the acceptability of the appraisal is in accordance with instructions provided to the appraiser, technical appraisal review instructions, and USPAP. 

(4)  The review appraiser may be instructed to express their own opinion of value.  This determination will be made on a case-by-case basis by the authorized official and will be included in any work order.

(5)  The review appraiser must obtain a copy of the listed standards at their own expense and have them available for reference during any technical review.

(6)  The purpose of the technical appraisal review is to provide an opinion regarding the acceptability of the appraisals performed.  Two appraisals are performed: the first provides an opinion of the market value of the subject property before acquiring an easement (“before value”), while the second provides an opinion of property’s market value after the proposed easement has been placed (“after value”) as of a current date of value (minus any adjustments for excess irrigation water).  The purpose of two opinions of value is to establish the effect on value resulting from imposition of a conservation easement.

(7)  The review appraiser must clearly identify the timeframe, not to exceed 12 months, within which the technical appraisal review report is usable for the intended purpose.  The expiration date of all NRCS-approved appraisals will be based upon the market trends reflected in the appraisal report.  Appraisal reports that do not represent current market conditions and values as of the date of the offer may not be used as the basis of any transaction.

(8)  The review appraiser must prominently state in the review report any crop base acres and allotment history that are located in the easement area and specify whether or not these were included in the appraisal.

(9)  The technical review report must be attached to the appraisal.

511.76  Technical Appraiser Responsibilities

The review appraiser will determine whether or not to approve use of the appraisal as the basis for establishing the amount of the offer. 

(1)  If the appraisal report is approved, the review report will be documented as stated in Subpart I, Section 511.108 including if the appraisal report complies with the assignment standards and adequately supports the value estimate.  Upon receipt by NRCS, a copy of the appraisal and technical review will be submitted to the NHQ staff appraiser for review and monitoring.

(2)  If the review appraiser determines the appraisal report is not approved, the review appraiser will provide the NHQ staff appraiser with the reasons the appraisal report was not approved in the appraisal review report which will be submitted to the NHQ staff appraiser.  The NHQ staff appraiser will determine if the appraiser should be contacted and by whom and determine if the appraisal report should be returned for corrections or if a new appraisal should be ordered.  The review appraiser may be instructed to work with the appraiser in an advisory role to obtain an approvable appraisal.  If the technical review appraiser does not approve the appraisal report, the option to purchase will not be issued until an approved appraisal report is obtained for the offered property.

(3)  Any revisions to the appraisal report required by the technical review must be completed and returned to the Government within 14 calendar days of the verified date of receipt of the requested information by the appraiser.  NRCS will only submit revised appraisal reports to the technical reviewer a maximum of three times.  If, after the third submission, the report is still found to be unacceptable, the report will be rejected, disapproved, or both.  The review appraiser will clearly show why the appraisal report is inadequate.

(4)  Minor technical nonconformance with USPAP should not be the cause of rejection of an appraisal report unless the deficiencies affect the reliability of the value estimate.

(5)  Approved.—In the technical appraisal reviewer’s opinion, the value estimate is strongly supported and complies with all contract specifications.  Any corrections or revisions by the appraiser are deemed insignificant in the technical appraisal reviewer’s opinion and will not affect the values identified in the appraisal report.   Fees will be paid upon receipt of accurate invoices.

(6)  Rejection

(i)  No appraisal should be rejected unless it is in violation of appraisal principles and standards, agency or Departmental regulations or directives, is inconsistent with facts, or asserts unsupported conclusions.

(ii)  Contract appraisals may not be rejected and fee withheld unless the report clearly and flagrantly does not comply with the contract.

(iii)  If the review appraiser does not approve the appraisal, the option agreement to purchase may not be signed.

(7)  Disapproval

(i)  If, after documented diligent efforts have been made to get the needed support and improvements, the appraisal report still does not meet acceptable standards or the value estimate is not adequately supported, then the review appraiser may disapprove or reject an appraisal report.  Rejection indicates particular problems of integrity.  The review appraiser must clearly show why the appraisal report is inadequate.  A copy of the appraisal and the technical appraisal review will be submitted to the NHQ staff appraiser upon completion. 

(ii)  Ultimate disapproval of a contract appraisal report because the value estimate is, in the review appraiser’s opinion, unsupported or not supported strongly enough, does not constitute "rejection" for contract payment purposes if the contractor has complied with the contract specifications.

(iii)  Recommending a second appraisal to confirm, support, or replace an unapproved appraisal report does not constitute rejection.  If, however, the second report supports a significantly different value estimate and that report is ultimately approved, this effectively disapproves the previous appraisal report or reports.

511.77  Limitations

A.  The technical review appraiser may not change an appraisal report except to fix minor mathematical or typographical errors; such minor changes must be called to the appraiser's attention.  Only the original appraiser is permitted to edit or otherwise revise the original appraisal report.

B.  The review appraiser may not substitute his or her personal judgment for that of the appraiser or dismiss careful appraisal judgment solely because it cannot be supported by conclusive market data.  However, the review appraiser may question the appraiser's judgment when it is illogical, unreasonable, not supported by data cited, or inconsistent with other data.

C.  The review appraiser must not allow agency goals or adversarial pressure to influence his or her opinion of an appraisal report’s value estimate.  Likewise, the review appraiser’s personal opinion regarding the proposed action must not be allowed to influence the review process.

D.  The review appraiser must not attempt to influence the appraiser's judgment or direct the appraiser toward a value estimate.  The only effort should be to obtain a properly supported value estimate based on factual evidence and valid analysis of all facts available through use of approved appraisal approaches and techniques.  Minor technical nonconformance with USPAP should not be sufficient to reject an appraisal report unless the deficiencies affect the reliability of the value estimate.

511.78  Reviewer Independence

To ensure objectivity and independence in the review process and preclude the appearance of conflicts of interest or wrongdoing, review appraisers may not—

(1)  Be responsible for case processing or negotiating the acquisition, disposal, authorization, or exchange of any appraised property.

(2)  Review an appraisal prepared by the reviewer's immediate supervisor.

(3)  Review an appraisal for a property they personally and recently appraised.

(4)  Review an appraisal prepared by an appraiser where possible conflicts of interest may exist.

(5)  As with appraisers, the review appraiser must not become an advocate.  The review appraiser's task is to evaluate the technical aspects of the appraisal.

511.79  Agency Supplemental Standards

Any appraisal report with value opinions that will result in NRCS acquisition costs in excess of $1 million will be sent to NRCS staff appraiser together with the technical appraisal review report for post review and acceptance before the option to purchase can be issued.

511.80  Maintaining Current Appraisals

When acquiring easements, appraisals used to estimate the market value of the easement must be based upon the timeframe as stated in the technical appraisal review report a maximum of 12 months from the effective date of the appraisal report.

(1)  If the appraisal is older than the allowable time period stated in the technical review or exceeds the 12-month limitation the appraiser who conducted the original appraisal will be contacted to determine if a more current date of value that complies with USPAP can be provided.  After receipt of an appraisal with a more current date of value, an appraisal review, subject to the requirements stated herein, will be conducted, and its acceptability will be determined before any purchase option agreement is issued.

(2)  In no case will an offer to purchase be issued if the appraisal is more than 12 months old (based on the effective date of the appraisal) as of the date of the proposed offer.

511.81  Changes in Acres or Substitution of Land or Title Conditions from Original Appraisal

A.  In cases where the appraisal was completed without the benefit of a legal survey that reflects a difference between acres in the easement area and the appraisal, the acres and price may be administratively reconciled to whichever is less if either of the following apply:

(1)  The surveyed acreage is within 5 percent of the acreage estimate used in the appraisal.

(2)  The difference in values based on the surveyed acreage is within $5,000 of the appraised easement value.

B.  States should administratively reconcile the easement acres and values by using a per-acre value determined by dividing the appraised easement value (the difference between the before and after value) by the estimated easement acreage in the appraisal.  The per-acre cost is then multiplied by the difference in acres between the easement acres in the appraisal and in the survey to arrive at the adjustment amount.  The adjustment amount is then added to or subtracted from the difference between the before and after appraisal to arrive at the administratively adjusted price of the easement.

C.  This does not apply to substitution of land proposed for the easement that is different from what is stated in the appraisal, access, or title conditions, including reservations, encumbrances, easements, or conveyances stated in the appraisal.  In this case a new appraisal report is required.

D.  If there is a substitution of land proposed for the easement that is different from what is stated in the appraisal, access, or title conditions, including reservations, encumbrances, easements, or conveyances stated in the appraisal, a new appraisal report and appraisal review report is required.  The revised information will be provided to the original appraiser, who will then produce a new appraisal that incorporates the changes to render a new value opinion.  This appraisal will undergo an appraisal review, in accordance with this section, and a new determination as to acceptability of the appraisal will be made.

511.82  Format for Supplemental Appraisal Reports

Supplements or amendments to appraisal reports, such as for updating value estimates, changes in acreage, substitution of land, additional support or explanation, or to correct a previous appraisal report, must be referenced for incorporation with the original report, in accordance with USPAP.  The following format is required, and all items must be addressed:

(1)  Title Page.—Include the same information as on the original appraisal report.  Label the report "Supplemental Appraisal Report.”

(2)  Summary of Facts.—Include all of the following:

(i)  Owner's name or other identification of the property

(ii)  Size

(iii)  Highest and best use

(iv)  New opinion of value

(v)  New valuation date if applicable

(3)  Summary of Original Appraisal.—Cite the date and value opinion from the original appraisal.  If previous updates have been made since the original appraisal, cite value opinions and value dates from all updates as well as the original appraisal.

(4)  Changes.—Explain the reason for the appraisal supplement, such as to update an opinion of value, amend a previous appraisal report, add additional support or explanation, or other.

(5)  New Opinion of Value.—Discuss the changes and market activity that have occurred since the original appraisal (or previous update).  Discuss the method used to update the opinion of value and cite the evidence, analysis of trends, or both, that support the updated value opinion.  Conclude with a statement of the new opinion of value and the valuation date, followed by the contract appraiser's signature.

(6)  Certification, as required in Subpart F of this manual.

(7)  Addenda.—Include sales data detail for new sales cited, summaries of data and trend analyses, maps of sales analyzed, and any other information relied upon but not included in the text.

(8)  Binding.—If the supplemental appraisal report is more than four pages long, place it in a durable report cover with appropriate identification.

511.83  Confidential Nature of Appraisals

Appraiser's valuations and supporting reports are confidential information, and the appraiser must strictly abide by the confidentiality provisions of the ethics rule of USPAP, which provides that an appraiser must—

(1)  Protect the confidential nature of the appraiser-client relationship.

(2)  Act in good faith with regard to the legitimate interests of the client in the use of confidential information and in the communication of assignment results.  The appraiser must clearly mark as confidential any information protected by the Privacy Act that is provided to him or her.  The appraisal can only be released after all information labeled or identified as confidential has been redacted.

(3)  An appraiser must not disclose confidential information or assignment results prepared for a client to anyone other than—

(i)  The client and persons specifically authorized by the client.

(ii)  State enforcement agencies and such third parties as may be authorized by due process of the law.

(iii)  A duly authorized professional peer review committee.

511.84  Exceptions

For real estate appraisals that have unique circumstances, such as large acreages with a small portion being considered for easement enrollment, the complete set of facts concerning the situation, including location maps and property maps, may be sent to NHQ for review and a determination if an alternative method of valuation may be used in lieu of these requirements.

511.85  NHQ Oversight

Throughout the year, various States will be reviewed for compliance with these appraisal and appraisal review requirements.  These reviews will be constructive in nature and offer assistance and guidance in the processing of easement appraisal and reviews.

511.86  Records Management

Agency-approved appraisal reports and technical appraisal review reports must be retained in the landowner’s file associated with the easement.

511.87  Public Access to Data

A. Release of Personal Information

(1)  Information about HFRP applicants is generally not released to the public because individual privacy rights must be protected.  The Freedom of Information Act (FOIA), Privacy Act, Section 2004 of the Farm Security and Rural Investment Act of 2002, and Section 1619 of the Food, Conservation, and Energy Act of 2008 (the 2008 Act)  require the Government to withhold certain information.  Refer to 120-GM, Part 408, Subpart C, “Freedom of Information Act and Privacy Act,” for NRCS policy regarding FOIA and the Privacy Act.  The following information about HFRP applicants may not be released:

(i)  Names

(ii)  Addresses

(iii)  Telephone Numbers

(iv)  Social Security or tax identification numbers

(v)  Amount of Federal funds requested

(2)  The 2008 Act does not impede the sharing of information between and among USDA agencies.  However, information may only be shared with Federal agencies outside of USDA when such agencies are cooperators within the meaning of Section 1619 of FECA but not for general regulatory or enforcement.

(3)  Information that has been transformed into a statistical or aggregate form that protects the name of an agricultural producer or owner or protects the data gathering site may be released to the public.  Producers or owners of agricultural operations may consent to the release of information not covered under this section.  This consent must be in writing and include the name of the participant, information that may be released, to whom the data is to be released, and the length of time the data is available for release.  Consent, however, must not be used as a condition to participate in or receive any benefit under a USDA.

B.  HFRP Applicant Information

Aggregate or statistical information about HFRP applications may be described in news releases, Web sites, and other tools used to inform the public.

C.  HFRP Participant Information

When the easement acquisition has been completed with the HFRP applicant, additional information is available for release.  The following information about HFRP participants may be released through a FOIA request:

(i)  Names

(ii)  Limited address (State, city, county, or any combination of these*)

(iii)  HFRP obligation amount

*Additional restrictions about the release of address information apply to some corporate and nonprofit business types.  Consult 120-GM, Part 408, for more guidance.

D.  Geospatial Information

(1)  NRCS is prohibited from disclosing geospatial information it maintains about agricultural land or operations that was collected in association with program participation.  However, conservation easement boundary information may be made public as such information that pertains to property interests held by the United States and is not merely information provided by an agricultural producer or owner.

(2)  The general public may access NRCS geospatial data at the following Web address:  http://gdwweb1.ftw.nrcs.usda.gov/Easements/default.aspx.  Available data includes the program name, easement boundaries, centroids, and State or county boundaries.

511.90  Overview

A.  This subpart provides guidance related to the maintenance, management, monitoring, and enforcement of lands enrolled in the Healthy Forests Reserve Program (HFRP).

B.  Maintenance is work performed to keep the applied conservation practice f functioning for the duration of the practice lifespan.  Maintenance includes work performed to prevent deterioration of the conservation practice, repair damage, or to replace the practice to its original condition if one or more components fail.  

C.  Management includes those activities or measures necessary to manage properly the wildlife functions and values, especially wildlife habitat for which the easement was established.

D.  Monitoring includes the periodic review and assessment of how land enrolled in HFRP is meeting HFRP purposes and objectives, including an assessment of the ecological functioning of the site and the program compliance of the landowner.

E.  Enforcement includes actions needed to ensure that landowners and third parties are not violating or trespassing upon NRCS contractual or easement rights. 

F.  NRCS will identify all required management and maintenance conservation practices, activities, and measures in the HFRP restoration plan.  To the extent possible, NRCS will comprehensively address landowner-required implementation on the easement area during the development of the final restoration plan.

G.  The landowner must maintain and manage all land enrolled in HFRP, including 10-year restoration cost-share agreements, easements, and 30-year contracts.  NRCS must review the easements, contracts, agreements, and management plans annually to determine whether HFRP purposes and objectives are being met.

511.91  Management

A.  General

The State Conservationist, in consultation with the Fish and Wildlife Service (FWS), or National Marine Fisheries Service (NMFS), will develop a process to ensure that easements, 30-year contracts, and 10-year restoration cost-share agreements are being properly managed and that deficiencies are corrected or additional work is completed in a timely manner.  This process will provide for documenting, certifying, and spot checking to ensure that all phases of enrolled HFRP projects are being managed to maximize wildlife habitat functions and values and accomplish the goals and objectives of the HFRP.  Easements, 30-year contracts, and restoration cost-share agreements will be monitored periodically, as specified in Section 511.96, for ecological and compliance purposes.

B.  Management Plans

(1)  Management plans must be site specific and are subject to change over time in order to maximize wildlife habitat benefits and forest functions and values.

(2)  State Conservationists must ensure that management plans are included in the restoration plan and that they prescribe how lands and restoration practices, measures, and activities will be implemented to maximize wildlife habitat benefits.

511.92  Compatible Uses

A.  General

NRCS has the right to determine and permit compatible uses on the easement area and specify the amount, method, timing, intensity, and duration of the compatible use, if such use is consistent with the long-term protection and enhancement of the purposes for which the easement was established.

B.  Prescribing Compatible Uses

All compatible use authorizations (CUA) must be in writing and supported by a technical determination in the case file that clearly documents the basis of activities considered to meet compatibility requirements and guidelines for implementation.  NRCS will consult with FWS or NMFS, to ensure that the use is compatible with the habitat requirements for the targeted species.  The CUA must include a statement that NRCS has the right to review and revise or terminate the authorization at any time to protect the functions and values of the enrollment area.

C.  Acceptable Structures 

(1)  All construction of buildings or structures is prohibited.  The only exception is the repair, maintenance, or replacement of existing buildings, facilities related to timber harvesting, or other existing structures previously identified as necessary to conduct common forestry operations, management practices, and timber harvesting on the property.  Construction of these structures is permitted at the same location, within the existing footprint of such structures.

(2)  Platforms, walkways, and signage for the purpose of wildlife observation, hunting, education, and scientific research, are permitted when they are consistent with the long-term protection and enhancement of the wildlife habitat and other natural values of the easement.  All of these uses require a CUA. 

511.93  Prohibited and Incompatible Uses

Prohibited and incompatible uses include those activities that NRCS determines will not further the protection and enhancement of the functions and values of the project area.  When determining if a use would be incompatible, evaluate the impact on the present project values and any potential impact, constraint, or limitation that the use would have on subsequent efforts to achieve maximum wildlife benefits and wetland value and functions.  In order to ensure landowner protections remain in place.  FWS, NMFS, or both must be consulted.

(1)  Infrastructure projects

(i)  State Offices must seek to avoid impacts to NRCS easements from proposed infrastructure projects such as pipelines, transmission lines, and airport expansions by remaining aware of existing and proposed infrastructure projects. States shall document consideration of potential impacts by existing or proposed infrastructure projects when deciding to enroll conservation land in HFRP.  NRCS will not knowingly enroll potential easement areas in the potential right-of-way of infrastructure projects.  NRCS will respond to proposed infrastructure projects immediately and will seek to avoid impacts in order to protect the interests in the United States.  Early involvement is essential, as is early involvement with the Office of General Counsel (OGC)

(ii)  Proposed infrastructure projects must avoid HFRP easements because the agency has no authority to modify the terms of the easement deed.  State Offices will contact the National HFRP manager for additional guidance on responding to any infrastructure projects affecting the HFRP easement.

(2)  Prohibited Structures

(i)  Constructing or placing of any structures or buildings, temporary or permanent, that compromise maximizing wildlife habitat benefits is prohibited.  This includes but is not limited to buildings used for residence and overnight occupancy, such as houses, trailers, hunting and fishing lodges, cabins, and yurts; fishing huts; storage facilities; workshops and fabrication facilities; saw mills; or any other structure that puts a lasting footprint on the easement and diminishes wildlife habitat benefits.

(ii)  For the purposes of this section, a conservation practice, measure, activity, or components thereof that are prescribed by the HFRP restoration plan are not considered prohibited structures. 

511.94  Activities Allowed Within the Easement Area

Form NRCS-CPA-260, “Healthy Forest Reserve Program Conservation Easement Deed,” (Subpart I, Exhibits, Section 511.109) lists permitted and restricted landowner activities in detail. 

511.95  Operation and Maintenance

A.  Landowners must operate and maintain the enrollment areas in accordance with the restoration plan, including maintenance of all conservation practices.  Final approval to implement any repair, maintenance, or replacement of any conservation practice, measure, or activity is the responsibility of the State Conservationist, regardless of whether or not the practice life expectancy has expired or the practice was damaged by a major storm or other natural disaster.  This approval does not obligate National Headquarters (NHQ) to provide funds for the work.

B.  When a natural disaster, such as an earthquake, devastating fire, or severe flood event, occurs, the local NRCS representative must notify the State Conservationist and give status reports of the condition of the site.  Upon the request of the State Conservationist, the Chief may, if funds are available, approve additional cost sharing to replace or repair practices destroyed by unusual circumstances beyond the control of the landowner.  Contact the national program manager when funding is needed to repair or reestablish a damaged site.

C.  With respect to 10-year restoration cost-share agreements, easements, and 30-year contracts, landowners must operate and maintain the enrollment areas in accordance with the restoration plan, including maintaining all conservation practices in good operating condition for the duration of the restoration cost-share agreement or the life expectancy of the practice, when the life expectancy of the practice exceeds the remaining duration of the enrollment.

511.96  Monitoring

A.  All HFRP enrollments will be monitored using the HFRP monitoring worksheet (see Subpart I, Exhibits, Section 511.111).  States may add additional information to the monitoring worksheet.  The results of the monitoring will be maintained in the HFRP database with a copy in the case file. 

B.  NRCS will notify the landowners prior to each field inspection of the enrollment area.  When a site visit is being planned, the fee title landowner must be contacted and provided the opportunity to participate.  To the extent practicable, the planned inspection should accommodate the landowner’s schedule.

C.  While restoration is being implemented, all enrollments will be monitored through onsite visits.  Schedule these visits at least annually—more often if needed to ensure the proper implementation of conservation practices, measures, or activities.

D.  Once restoration has been completed, the contract area or easement area will be monitored annually. A site visit will be conducted at least once every three years and remote sensing process will be used for two of the three years. 

Note:  The State Conservationist may develop a schedule that requires more frequent monitoring if the above schedule does not meet local needs.

E.  At a minimum, the monitoring process and documentation must include—

(1)  Whether the installed practices are operating as planned

(2)  Whether maintenance activities are adequate to keep the installed practices effective

(3)  Whether restoration requirements have been met

(4)  Whether the site provides quality wildlife habitat for priority species

(5)  Taking photographs at predetermined photo points.  Maintain these photos in the file

(6)  Documentation of other conservation practices, measures, or activities that need to occur to improve the site for wildlife habitat or to ensure protection of wetland functions and values, including an estimate of the cost of the necessary items

(7)  Verification of current ownership

(8)  Confirmation of boundary markings

(9)  Compliance with compatible-use authorizations

(10)  The condition of the easement as stewardship land

(11)  Ensuring all other easement, contract, or agreement conditions are being met

F.  Property Inventory Report Use in Easement Monitoring

The Property Inventory Report (Baseline) should be used in monitoring for comparison purposes between preexisting and current conditions of the easement area.  The report can be used to assess whether any new unauthorized structures have been built, the degradation or improvement of the grassland resource, or any other changes since the easement was first closed. 

511.97  Violations

A.  General

(1)  The State program manager must immediately report all suspected violations to the national HFRP manager and local Office of General Counsel (OGC) representative.  The suspected violation and the eventual disposition of that violation must be documented in the official case file.  An onsite visit must be scheduled immediately when a potential violation has been reported to NRCS or noted from monitoring activities.  The purpose of the visit will be to determine if a violation actually exists.

(2)  Visits to the easement area and observations, such as condition of wildlife habitat, land-use practices, and other items of interest concerning the easement, must be thoroughly documented.  Documentation must include photographs of the potential violation.  The individual making the report will date and sign each entry on each item of documentation.  Reports documenting conditions where there is no evidence of violation, are just as important as a report that documents potential violations.

B.  Preventing Violations and Enforcement Policy

(1)  The purpose of enforcement activity is to prevent violations.  The three keys to successfully preventing violations are:

(i)  A good relationship with the landowner.  There is no substitute for frequent, direct interaction with the landowner to reinforce the provisions of the easement and to answer questions that may arise.

(ii)  An easement or restoration cost-share agreement document with clear and enforceable conditions and restrictions.

(iii)  A history of regular, systematic, and well-documented monitoring reports.

(2)  Communication with landowners is important to minimizing violations on land enrolled in HFRP.  Depending on the individuals involved, this communication may be by personal contact or written correspondence.

(3)  NRCS personnel who conduct site visits should review procedures for handling potentially violent situations prior to making personal contact with landowners or alleged trespassers.  This is to ensure the safety of all NRCS personnel and agents.

(4)  It is also necessary, from practical and legal standpoints, to enforce easements effectively and to detect and prosecute violations by collecting and preserving information and managing inspection records in a consistent manner.

(5)  If landowner protections have been approved for the easement, FWS, NMFS, or both must be consulted and involved in assisting NRCS in evaluating potential violations.

(6)  NRCS must have good inspection records and a record of conversations with the landowner to be able to reasonably determine how and why a violation occurred.  An accurate, well-documented record is essential and will be far more important in court than personal testimony.

(7)  The terms and conditions of the contract, easement deed and restoration cost-share agreement should be discussed with the landowner prior to recording the easement and with subsequent landowners.

C.  Handling Violations

(1)  When a violation of the contract, easement or a compatible-use authorization is confirmed, the landowner must be given reasonable notice and an opportunity to correct the violation voluntarily.  Allow landowners 30 days from the date of the notice or such additional time as the State Conservationist determines is necessary to correct the violation.

(2)  NRCS reserves the right to enter the easement area at any time to remedy deficiencies or easement violations.  Such entry may be made at the discretion of NRCS when deemed necessary to protect important listed species, candidate species, forest ecosystems functions and values, or other rights of the United States under the contract or easement.  The landowner is liable for any costs incurred by the United States as a result of the landowner’s negligence for failure to comply with easement or contractual obligations.

(3)  Depending on the severity of the violation, this initial notification may be in writing or may be made verbally by the local NRCS representative and documented to the file.  For example, upon finding livestock on the easement, the NRCS representative may verbally tell the landowner to remove the cattle within 24 hours.  A followup site visit must be conducted the next day to determine if the violation has been corrected and the results carefully documented. 

(4)  If a violation is not corrected as a result of a verbal notification to the landowner, written notice is required.  The State Conservationist must notify the EPD director, who must notify the Deputy Chief for Easements and Landscape Planning, and send the written notice to the landowner by certified, return-receipt mail.  OGC will review the draft notice prior to sending it to the landowner to ensure that NRCS is not compromising its enforcement position.  The returned receipt card must be kept in the official agreement file.  Prior to and immediately following the response deadline, an onsite visit will be made to determine if the landowner has complied with the correction notice. 

(5)  When a possible violation is found by remote sensing or otherwise, an onsite inspection is required.  Before making the onsite inspection, the following materials should be assembled:

(i)  Case file, which includes all permits, plans, and correspondence.

(ii)  Copy of pertinent material from the official State office file.

(iii)  Easement Violation Worksheet to record findings.

(iv)  Map noting location of possible violation.

(v)  Camera, video equipment, or digital camera to record the condition of the site.  Photographs should be taken as soon as possible when significant changes occur, such as land use or possible violations of the easement.

(vi)  The State Conservationist must contact the landowner by certified, return-receipt letter or telephone call to schedule a date to visit the site.  The returned receipt card, documentation of the telephone call, or both must be kept in the official agreement file.

Note:  It is extremely important that when a violation has occurred, the State Conservationist must contact the local OGC representative for—

·          Advice on the contents of the landowner violation notification letter, including appropriate “cease and desist” language.

·          NRCS violation documentation requirements.

·          Enforcement proceedings strategy.

D.  Information to Collect During Possible Violation Site Visit

During the site visit, the following information must be documented:

(i)  The names and affiliation of individuals involved in the inspection, including the landowner, if appropriate

(ii)  Location of the potential violation

(iii)  A complete set of notes about the violation including—

·          Size, extent, and location of the possible violation.

·          Grass, forbs, tree, and shrub species in the area.

·          The type of restoration completed, if appropriate.

·          Quantification of impacts, such as loss of wildlife species, disturbed nests, removed or destroyed posts, amount and effect of grazing, etc.

·          Any other activities or pertinent site conditions.

(iv)  Compile photographic documentation of all aspects of the possible violation, including—

·          Photographs, slides, videos, or digital photos from various directions that capture the alleged violation, such as haying, mowing, grazing, cultivation, dumping, or encroachment, and the extent.

·          The most serious aspects of the alleged violation.

·          Potentially controversial areas concerning compliance.  Show the general nature of the surrounding easement area so that adequate compliance can be easier to achieve.

·          Mark on a map the points from which photographs were taken and label all pertinent data on the photographic coverage.

(v)  Collect GPS points of the violation and photo point locations.

(vi)  Delineate the location of the violation on a current map.

511.98  Enforcement

All actions taken once a violation has been identified must be conducted with the guidance and ongoing participation of the local OGC attorney and NHQ.

(1)  Precontact Preparation

(i)  Verify current fee title land ownership and (if applicable) tenancy.  Verification can be accomplished using courthouse records, FSA records, etc.

(ii)  Review and become completely familiar with the case file in preparation for an interview with the landowner or tenant.

Note:  It is important to thoroughly document all case files.  Review all previous violations and resolution measures.  Pay particular attention to prior contacts with the landowner and the landowner’s reactions to NRCS activities on the contracts or easement area.  Note prior confrontations and unusual reactions of the landowner, if any.

(2)  Landowner and Tenant Contact

(i)  Interview Phase.—The interview must involve two NRCS employees who have both received training in handling potentially volatile situations.  This phase of the investigation could very well determine the success in resolving any dispute.

·          Identify yourself and the assisting employee and state that you represent the NRCS of the U.S. Department of Agriculture.  The individual must know that he or she is meeting with a Federal employee.  This may be extremely important if the interview results in an NRCS employee being assaulted.

·          Establish the identity of the individual to be interviewed.  Initially, this may be the landowner or tenant.  Obtain the individual’s address.

·          Identify the manager of the land in question.

·          Try to establish who is responsible for the activity that is considered a violation.  It may also be possible to establish who ordered the activity and whether it was done by an alleged violator’s employee or through contract.

·          Identify all persons involved and conduct an interview with each, as necessary.

·          Share photos and location maps of the violation.  Do not take the case file to the meeting.  The whole file is not open for viewing by the landowner, operator, or the general public. Only USDA, NRCS, and OGC officials are permitted to have access to the file.

·          If at any point during the conversation issues arise that may confuse the issues surrounding the case, it is best to tell the individual that you will get back to them after completing your investigation.  Contact the local OGC for a legal opinion before you make any demands.  NRCS personnel should withdraw from any situation that becomes hostile.

(ii)  Post interview Procedures.—As soon as the NRCS employees have departed from the subject’s location, thoroughly document all evidence obtained during the interview.  Important evidence may be lost if trusted only to memory.  Considerable time can pass between the interview and the time when the information may be needed in court.

·          Prepare a memo to the file.

       --  Include the name, address, and a complete description of the subject.

       --  Include a reference to the tract of land covered by easement.

       --  You may include factual observations regarding the demeanor of the subject, but do not use derogatory statements.

       --  Above all else, make reference to direct quotes the subject made, either      spontaneously or in response to specific questions.

(iii)  Compliance Requirements, Restitution, or Both.—After the interview, NRCS must decide what must be done to restore or remediate the damage to the easement.  This may require consultation with NRCS professionals, OGC, or both.  Serious violations may be referred to the Assistant U.S. Attorney’s Office (AUSA) after consultation with OGC.

(iv)  After NRCS decides how to remediate the damage to the easement, notify the landowner, operator, or both by certified letter that remediation is required.  Request OGC review of the letter prior to sending it to the landowner or operator.

·          In the letter, reiterate what was told to the subject during the interview.

·          Clearly state the compliance terms and the compliance deadline.

·          Attach a map indicating the locations and work required for compliance.

·          The letter must be sent certified, with return-receipt requested and restricted delivery.  The stamped receipt is the only evidence that will indicate later, in court, that the subject received the letter.

·          Inform the subject that if compliance is not obtained, the case will be referred to OGC and AUSA for possible prosecution.  In the initial letter, it may be preferable to avoid mentioning prosecution in order to keep a positive tone to the communication.  In any followup letters, the possibility of prosecution if remediation is not obtained should be mentioned.

(v)  Landowner Notification of Violation.—Written notice to the landowner of the violation is an important part of the administrative record of the violation, which may be used later in court, as well as to officially notify the landowner of the violation and the required steps to cure.

·          In a certified letter, return receipt requested, set forth the facts of the easement violation to the landowner and detail the remediation requirements and period to cure.  Copy the local OGC attorney on the letter.  Provide your contact information in case the landowner has any questions.

·          The letter will provide the guidelines for remediation.  In the letter, request that the landowner call you when the work is completed.  Serious violations require that an NRCS representative be present to ensure proper compliance.  It is extremely difficult to get landowners to go back and do a small amount of additional work.  If an extended deadline has been granted, write the landowner a reminder of the deadline.  Mitigating circumstances such as weather, high water levels, or illness should be taken into consideration and should be documented in the correspondence.  Seeding the crop or other work excuses are not mitigating circumstances.

·          Explain in the letter to the landowner that noncompliance may result in a court appearance.  The U.S. Attorney makes the decision whether to prosecute a case so be careful not to make representations in this regard.

(vi)  Compliance Check

·          Immediately following the expiration of the period to cure, it is essential to make a field check to ensure compliance.  NRCS must be prepared to tell the landowner-operator that they will be out of compliance until the wildlife habitat has been reestablished.  If safe harbor agreements exist, FWS and NMFS must be contacted to determine effect of possible violation.

·          After the easement manager determines that the easement area has been remediated, send certified letter notifying the landowner.  Mention that any future violations may be referred to the AUSA for possible action. 

·          In the event the subject does not comply, an attempt will be made to contact the landowner.  If efforts to obtain compliance are unsuccessful, the case must be forwarded to the State office and OGC.  Send a certified letter to the landowner indicating that he or she is noncompliant, and the case is now being referred to the AUSA through OGC.

(vii)  Judicial Process

·          Litigation Report

(viii)  NRCS must prepare three copies of a litigation report when an easement violation is referred to the AUSA for possible legal action.  The litigation report must contain the following:

·          The complete administrative record related to the violation and subsequent enforcement attempt by NRCS, including correspondence, maps, photographs and video of the site showing the violation, testing results, correspondence from the landowner or tenant, and any other relevant information.

·          An index to the report for ease of reference.

·          A summary of the facts, including a chronology of events.

·          Agency names and contact numbers.

(ix)  The local NRCS representative starts the routing process by submitting one copy of the case report to the State office.  The State office will then forward a copy to OGC.

·          Personal Liability.—The landowner receiving the cost-share payments is responsible to the Federal Government for any losses the Government sustains when the landowner does any of the following:

       --  Infringes on the rights of others

       --  Does not comply with applicable laws or regulations

       --  Allows others to infringe on the rights of the Federal Government

·          Recovering Costs.—The United States or the Department is entitled to recover any and all administrative and legal costs, including attorney’s fees or expenses associated with any enforcement or remedial action.  Legal action can take either or both of two forms:

--  Criminal prosecution of the person who violates the easement, Federal law, or regulation

--  Civil action to prevent further easement violation or to collect monetary damages

511.99  Other Considerations

Ecosystem Services Credits for Conservation Improvements.

USDA recognizes that environmental benefits will be achieved by implementing conservation practices, measures, and activities funded through HFRP and that environmental credits may be gained as a result of implementing activities compatible with the purposes of an HFRP easement, 30-year contract, or restoration cost-share agreement.  NRCS asserts no direct or indirect interest in credits generated by activities not funded through HFRP.  However, NRCS retains the authority to ensure requirements of an HFRP easement, restoration plan, contract, or cost-share agreement are met consistent with NRCS policy.  Where activities required under an environmental credit agreement may affect land covered under an HFRP easement, restoration cost-share agreement, or 30 –year contract, participants are encour4aged to request a compatibility assessment from NRCS prior to entering into such agreements.