M_180_NFSAM - National Food Security Act Manual, Fifth Edition

Part 510 - General Information

Subpart A – Introduction
   Subpart A – Introduction  

 510.0  General Information

A.  Introduction

This section sets forth the purposes and objectives of the Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) provisions.

B.  Legislated Authorities

(1)  Legislative authorities for the policy and procedures contained in this manual are as follows:

(i)  Public Law 99–198, Title XII, The Food Security Act of 1985.

(ii)  Public Law 101–624, Title XII, The Food, Agriculture, Conservation, and Trade Act of 1990.

(iii)  Public Law 104–127, Title III, The Federal Agriculture Improvement and Reform Act of 1996.

(iv)  Public Law 107–171, Title II, The Farm Security and Rural Investment Act of 2002.

(v)  Public Law 110-234, Title II, The Food, Conservation, and Energy Act of 2008.

(vi)  Public Law 113-79, Title II, The Agricultural Act of 2014.

(2)  These authorities were codified in 16 U.S.C. 3801 through 3824.

C.  Contents of the Manual

(1)  This manual contains U. States Department of Agriculture (USDA) and Natural Resources Conservation Service (NRCS) policy and operating procedures for implementing Federal  Regulation 7 CFR Part 12, including:

(i)  Interim rules published:

·         June 27, 1986

·         September 6, 1996

(ii)  Final rules published:

·         September 17, 1987

·         February 11, 1988

·         April 23, 1991

·         April 24, 2015

 (2)  The procedures in this manual provide NRCS policy for implementation of the following:

(i)  HELC

(ii)  WC

D.  Related Programs

The following programs have been authorized by the Food Security Act of 1985, as amended:

(i)  Conservation Security Program (CSP)

(ii)  Conservation Stewardship Program (CStP)

(iii)  Conservation Reserve Program (CRP)

(iv)  Environmental Quality Incentives Program (EQIP)

(v)  Farm and Ranch Lands Protection Program (FRLPP)

(vi)  Grassland Reserve Program (GRP)

(vii)  Wetlands Reserve Program (WRP)

(viii)  Wildlife Habitat Incentives Program (WHIP)

E.  Required Knowledge by NRCS Employees

Personnel assigned HELC and WC responsibilities must have a working knowledge of this manual as well as 7 CFR Part 12.

F.  State Supplements to this Manual           

(1)  Draft copies of all State supplements to this manual will be sent for review and approval before issuance to the appropriate Division Director in National Headquarters for HELC/WC guidance.

(2)  All exceptions to this manual by States must be approved by the appropriate Division Director.

(3)  Final copies of all amendments, technical notes, and guidelines relating to the provisions contained in this manual will be posted to the NRCS eDirectives Web site.

510.1  Purpose and Scope of the Provisions

A.  Purpose of the HELC and WC Provisions

The purpose of the HELC and WC provisions are to:

(i)  Remove certain incentives for persons who—

·         Produce agricultural commodities on highly erodible land (HEL) without proper conservation treatment

·         Convert wetlands to make possible the production of agricultural commodities

(ii)  Reduce soil loss from wind and water erosion.

(iii)  Protect the Nation's long-term capability to produce food and fiber.

(iv)  Reduce sedimentation and improve water quality.

(v)  Assist in preserving the functions and values of the Nation's wetlands (7 CFR Section 12.1 (b)).

B.  Program Benefits Covered by HELC and WC Provisions

(1)  When producing an annual agricultural commodity, USDA program participants must apply an approved conservation system that meets the substantial reduction or no substantial increase definitions, (see Part 512, Subpart A, Conservation Systems, Section 512.0(e) of this manual). To maintain eligibility, participants must also certify that they have not produced crops on converted wetlands after December 23, 1985, and did not convert a wetland after November 28, 1990, to make agricultural production possible.

(2)  The following USDA benefits may be affected:

(i)  Agricultural Market Transition Act (AMTA) Production Flexibility Contract Payments

(ii)  Farm storage facility loans (not subject to WC)

(iii)  Disaster payments (not subject to WC)

(iv)  Farm Operating Loans issued under the Consolidated Farm and Rural Development Act

(v)  Conservation program payments for the following conservation programs:

·         CSP

·         CStP

·         CRP

·         Environmental Quality Incentives Program (EQIP), including Interim EQIP, and prior year Great Plains Conservation Program (GPCP), Colorado River Salinity Control Project (CRSCP), Agricultural Conservation Program (ACP), and Water Quality Incentives Program (WQIP) contract payments

·         Farmland Protection Program (FPP)

·         GRP

·         Wetlands Reserve Program (WRP)

·         WHIP

(3)  Agricultural Credit Act of 1978 payments.

(4)  Payments or loan assistance authorized by the Watershed Protection and Flood Prevention Act (Public Law 83–566, Small Watershed Program contracts).

(5)  These programs are listed in the Catalog of Federal Domestic Assistance.  Specific details on these programs are available from the administering agency.

(6)  Contract payments, marketing assistance loans, and any type of price support or payment made available under the Agricultural Act of 2014, the Commodity Credit Corporation Charter Act (15 U.S.C. 714b and 714c), or successor acts.

C.  Actions to be taken by NRCS to ensure compliance with the HELC/WC

Before processing any conservation program payments, NRCS will:

(i)  Request verification of compliance with HELC and WC requirements from the Farm Service Agency

(ii)  Review compliance status for HELC/WC during the regular contract reviews.  If violations are found, provide the appropriate violation documentation.  (See Part 518, Subpart B, Conducting Compliance Reviews, Section 518.12 of this manual)

D.  Compatibility

NRCS shall ensure that implementation of HELC and WC provisions does not conflict with other Federal, State, or local conservation programs (e.g., water quality rules and regulations, State erosion control cost-share programs).

E.  Appeal rights

The NRCS Appeals and Mediation Policy are set forth in Title 440-Conservation Programs Manual (CPM), Part 510, Appeals and Mediation.  Appeals of the HELC/WC provisions are authorized under Title XII of the Food Security Act of 1985, as amended.

F.  Scope of provisions of 7 CFR Part 12

Figure 510-A1:  Scope of the HELC/WC by Category

Category

Applicability

Geographic area

(7 CFR Section 12.3)

 

All land, including Indian tribal land, determined to be highly erodible, wetland, or converted wetland in the following

·            50 States

·            District of Columbia

·            Commonwealth of Puerto Rico Guam

·            Virgin Islands of the United States

·            American Samoa

·            Commonwealth of Northern Mariana Islands

·            Federated States of Micronesia

·            Republic of Palau

·            Republic of the Marshall Islands

Ownership

Lands owned by units of government, including—

·            Federal

·            State

·            Local

·            Private citizens

·            American Indians

·            Corporations, trusts, and estates

Persons

Persons who participate in any of the USDA programs listed in Section 510.1(B), including—

·            Individuals

·            Partnerships

·            Associations

·            Corporations

·            Cooperatives

·            Estates

·            Trusts

·            Joint ventures

·            Joint operations

·            Other business enterprises or legal entities

·            State or political subdivisions

Affiliates as provided in 7 CFR Section 12.8.

510.2  Conservation Compliance Criteria and Technology Changes

A.  Background

(1)  HEL determinations and conservation systems have been developed using the Universal Soil Loss Equation (USLE) and Wind Erosion Equation (WEQ), adopted and incorporated as of January 1, 1990, into the Field Office Technical Guide (FOTG), and as published in 7 CFR Part 610, Subpart B. (See NFSAM, Part 527)

(2)  As new technology is developed and incorporated into the FOTG, such as the Revised Universal Soil Loss Equation (RUSLE) or Wind Erosion Prediction System (WEPS), policy will be established for specific use of the new technology.

(3)  NRCS will continue to use the HEL soil map unit lists that were developed using USLE, WEQ, and the factors in the FOTG as of January 1, 1990, when making HEL determinations.

B.   Effects of Technology Changes

(1)  Implementation of new technology will not result in increased requirements for HELC/WC. The original conservation treatment identified in the conservation system will be honored as technology is implemented.

(2)  Any new or revised systems will be based on new data and technology in the FOTG as it becomes available.

510.3 Revised Universal Soil Loss Equation (RUSLE) Implementation Policy

A.  When to Use USLE

Use USLE for the following actions:

(i)  Make or revise an HEL determination

(ii)  Determine the soil erodibility index

(iii)  Develop HEL soil mapping units-USLE

B.  When to Use RUSLE

Use RUSLE for the following actions:

(i)  Develop an approved conservation system

(ii)  Recalculate the soil loss for applied conservation systems

(iii)  Evaluate substantial reduction or no substantial increase in soil erosion

(iv)  Determine before and after soil loss for compliance reviews

(v)  Evaluate applied conservation systems

C.  RUSLE Implementation Guidelines

(1)  Implement revisions to RUSLE for conservation compliance purposes after:

(i)  RUSLE databases have been fully developed.

(ii)  All HEL conservation systems listed in the FOTG have been reevaluated using the revised version of RUSLE.

(iii)  All applicable documents are incorporated into the FOTG.

(iv)  Changes to soil loss equations have met notice and comment requirements in a manner consistent with 5 U.S.C. Section 553.

(v)  Soil loss levels for conservation systems developed using other technologies have been recalculated using the revised version of RUSLE to establish the new soil loss value for the conservation system, as described in Section 510.3(B).

(2)  Any new conservation systems must be developed using the appropriate version of RUSLE.

 

     

    
    

[M_180_NFSAM_510_A - 5th Ed., Amend. 1 - December 2015]

Subpart B – Person Responsibility

Subpart B – Person Responsibility  


 

510.10  Eligibility Requirements for USDA Benefits

A.  HELC Requirements

Program participants requesting applicable USDA benefits must apply an approved conservation system that meets the following requirements:

 

If a field has been determined

AND…

THEN…

To be highly erodible and was used to produce crops prior to December 23, 1985

 A system or plan in the FOTG was in place, maintained, and had been approved prior to July 3, 1996,

That field is considered to be in compliance with the HELC provisions.

A system in the FOTG is planned or applied after July 3, 1996,

The system to be applied must meet the FOTG criteria for a substantial reduction in erosion. (See Part 512, Section 512.0 (e) of this manual.)

To be highly erodible with no history of crop production prior to December 23, 1985

Is broken out of native vegetation (including rangeland or woodland),

The system to be applied must meet the FOTG criteria for no substantial increase in the level of erosion. (See Part 512, Section 512.0(f) of this manual.)

B.   Wetland Conservation Requirements

(1)  Unless an exemption applies, any person who plants an agricultural commodity on wetlands that were converted between December 23, 1985, and November 28, 1990, will be ineligible for program benefits in any year an agricultural commodity is planted.

(2)  Unless an exemption applies, any person who converts a wetland or makes the production of an agricultural commodity possible after November 28, 1990, will be ineligible for program benefits until the functions and values of the wetland that was converted are mitigated.

510.11  Person Requirements

A.  Knowledge

It is the USDA participant’s responsibility to understand the requirements of the HELC and WC provisions and to seek any needed technical assistance for their compliance with the provisions.

B.   Intent to Participate in USDA Programs

Persons who wish to participate in any USDA programs subject to HELC/WC provisions are responsible for contacting FSA in advance of participation so that any needed USDA technical assistance can be provided in a timely manner. Late contacts may not allow sufficient time for timely provision of assistance, resulting in substantial delays for the receipt of the technical assistance and/or the determination of program eligibility. (7 CFR Section 12.4(h))

C.   Filing Form AD-1026

(1)  Persons who request benefits on land that they own or operate that is subject to HELC and WC provisions are required to file Form AD-1026 certification at the FSA county office.

(2)  This form also serves as a person's certification of applying a conservation plan and/or use of a conservation system as well as compliance with the wetland provisions.

Note: An example of Form AD-1026 is provided in Part 527.

Note: Form NRCS-CPA-38 can be used to request a certified wetland determination. (See Part 527)

D.  Conservation Planning and Application

(1)  The person requesting USDA benefits is responsible for making all decisions necessary for:

(i)   Developing an approved conservation system.

(ii) Applying and maintaining the practices included in the approved conservation system as scheduled.

(2)  When a new owner or operator assumes control of a tract of land subject to HELC/WC provisions, that person must either—

(i)   Maintain the conservation system that had been previously applied, including the soil loss protection associated with that conservation system.

(ii) Develop and apply a conservation system that meets the same level of soil loss protection of the previously applied and maintained conservation system.

(3)  Until or unless NRCS is contacted, the signatures of the new owner(s) and/or operator(s) on the Form AD-1026 constitute agreement to continue applying the existing conservation system, or a conservation system with the same level of protection. In all cases, the person is responsible for applying or using a conservation system that will meet the criteria in the FOTG and the soil loss and/or improvement criteria as set forth in 7 CFR Section 12.23. (See Part 512, Subpart A, Conservation Systems, Section 512.0).

(4)  If the system being applied is not currently included in the FOTG or is not the system as documented in the person’s conservation plan, the USDA participant is responsible for providing the appropriate information to substantiate compliance with the system criteria contained in the FOTG.

(5)  Persons who are subject to conservation compliance for the first time due to passage of the Agricultural Act of 2014 and relinking of compliance with crop insurance subsidy benefits, will have 5 reinsurance years after the date the person is determined to have HEL and has exhausted all administrative appeals, if applicable, to develop and comply with a conservation plan approved by NRCS before being ineligible for Federal crop insurance premium subsidies.  The additional time to develop and comply with a conservation plan approved by NRCS applies only to persons who have not previously been subject to the highly erodible land conservation provisions.  The additional time provided in this paragraph does not apply to any person who had any interest in any land or crop that was subject to the conservation compliance provisions before February 7, 2014.  The 5 reinsurance years to develop and comply with a conservation plan approved by NRCS starts as described below:

(i)  For persons who have or operate on no land with an NRCS HEL determination, the 5 reinsurance years begin at the start of the reinsurance year (July 1) following the date NRCS makes an HEL determination, and the person exhausts all their administrative appeals.

(ii)  For persons who have or operate any land for which an NRCS HEL determination has previously been made and all administrative appeals have been exhausted, the 5 reinsurance years begin at the start of the reinsurance year (July 1) following the date the person first certifies compliance with FSA to be eligible for USDA benefits subject to the conservation compliance provisions.

(6)  Persons who have been subject to conservation compliance in the past, but discontinued participation in programs due to an HEL violation prior to February 7, 2014, have 2 reinsurance years to develop and comply with a conservation plan approved by NRCS if they are currently in violation of the HEL provisions.  The 2 reinsurance year period starts the July 1 following the date when they first certify compliance (after February 7, 2014) with the Farm Service Agency.

E.  Wetland Determinations, Exemptions, and Scope and Effect

(1)  A person that applies for USDA benefits is responsible for obtaining wetland determinations, exemptions, and scope and effect evaluations before—

(i)  Altering any wetland area.

(ii)  Improving an existing drainage system.

(iii)  Maintaining an existing drainage system.

(2)  To assist in scope and effect evaluations, the USDA participant is responsible for—

(i)  Providing records and plans for any past hydrologic manipulations.

(ii)  Furnishing plans for any proposed manipulations, including the drainage capacity of existing and planned drainage systems.

(3)  The participant is also responsible for complying with all Federal, State, or local regulations, permits, etc., administered by other agencies.

F.  Access

(1)  The USDA participant’s signature on the Form AD-1026 grants legal access to the land by any USDA employees and/or their representatives. This includes:

(i)  Administration of the HELC/WC provisions

(ii)  Review of the status of conservation system implementation

(iii)  Review of any practice implementation associated with any conservation program subject to the HELC/WC provisions

(2)  Information regarding permission for access can be found at 7 CFR Section 12.7(a)(5).

(3)  Failure by a USDA participant at any time to allow access may result in ineligibility for program benefits. Notify the local FSA office by using Form FSA-569. (See Part 527.)

G.  Person Records

(1)  Evaluation of conservation systems is best done over the cycle of one or more crop rotations, rather than annually. To do this, a review of system application records is necessary.

(2)  Farmers and ranchers are encouraged to keep records of the following:

(i)  Crop rotations

(ii)  Tillage operations

(iii)  Maintenance work done on structural practices, including drainage systems

(iv)  Other pertinent records in order to support their certification of compliance made on the Form AD-1026. (See Part 520, Subpart A, Technical Assistance in HELC Implementation, Section 520.1)

(3)  Developing and maintaining the historical record is the responsibility of the USDA participant.

(4)  No assumption of future-years planting may be used as a basis for a compliance decision.

 

If…

Then…

A USDA participant keeps and maintains system application records,

NRCS may use these to assist in documenting a conservation compliance review.

The USDA participant’s records show the use of a conservation system meeting FOTG requirements over a period of years,

A deficiency that may occur in a single year will not be the sole basis for a noncompliance decision by NRCS. Note: To not be considered a violation, the deficiency must be minor and for only a single year.

H.  Reinstatements

A USDA participant found to be in violation of HELC or WC can be reinstated for eligibility of those benefits.  Procedures for reinstatement are set forth at Part 520, Subpart A, Technical Assistance in HELC Implementation, Section 520.2.

I.  Equitable Contribution for False Certification

(1)  Definition

(i)  Equitable contribution (EC) is a provision of the Agricultural Act of 2014 that establishes payment of a penalty when participants in the Federal crop insurance program have failed to accurately certify their compliance with the wetland conservation (WC) provisions and convert a wetland or plant on a converted wetland after June 1, 2015.  This provision applies only to producers who are participants in the Federal crop insurance program. 

(ii)  This penalty will not apply to any wetlands converted that receive a good faith exemption.

(iii)  This penalty applies only to Federal crop insurance program benefits.

(iv)  This penalty will only apply to violations where the technical determination has cleared all administrative appeals.

(v)  Levy of this penalty does not provide a person with relief from wetland mitigation requirements.

(2)  Failure to Certify

(i)  Failure to certify occurs when a participant is found to be in violation of the WC provisions and they did not correctly complete form AD-1026 prior to performing wetland manipulations that resulted in the violations. 

(ii)  All participants are required to self-certify their compliance with the WC provisions which includes reporting their intended actions to USDA on line 7 of the AD-1026 form.  A check under “YES” on line 7 of the AD-1026 is sufficient minimum documentation to be considered to have properly certified. 

(iii)  In addition, failure to correctly certify can occur when no AD-1026 is filed.  This is the only instance where an EC planting violation will apply.

(3)  Timing

(i)  This penalty applies only to situations where wetland conversion activities commenced after June 1, 2015.

(ii)  This penalty will not apply during any period of timely assistance (see section 514.70).

(iii)  The penalty will apply for Federal crop insurance program benefits received during the calendar year of the wetland conversion but will not apply to any subsequent years of benefits.

 

Figure 510-B3: Penalty Amounts

Action

Penalty – Percentage of Federal crop insurance program benefits received

Converting a wetland

100%

Planting on a converted wetland (a wetland converted after 2/7/14)

50%

Converting a wetland which qualifies for a minimal effect exemption

0

 

Note: NRCS will consult with the Risk Management Agency (RMA) to obtain the payment amount to apply the penalty.

(4)  Penalty Calculation

(i)  In order to calculate the penalty, RMA will provide the total Federal crop insurance benefit amount for the year of the wetland conversion.

(ii)  Designated NRCS State office staff will have access to a Web-based informational system which allows querying the amount of crop insurance benefits received in a particular year.

(iii)  Apply the penalty percentage from the table above.

(iv)  Prepare and issue a debt collection letter 30 calendar days following the participant’s receipt of a preliminary technical determination if the decision is not appealed or 30 calendar days after the participant’s receipt of a final technical determination if no further appeal has been requested to the FSA county committee or to the National Appeals Division.  See template in 510.13, Exhibit.

(5)  Debt Collection Using the National Accounts Receivable Services Team (NARST) 

(i)  The NARST enters debts to be collected into the Financial Management Modernization Initiative (FMMI) system to initiate the collection process.

(ii)  The State point of contact (POC) for NARST will notify NARST of a debt to be collected and upload a copy of the collection notice to the NARST SharePoint site.

(iii)  When the receivable is entered into the FMMI system, the National Finance Center (NFC) mails a bill to the participant, requesting payment for these amounts.  The participant must make the check payable to “U.S. Department of Agriculture—NRCS,” and follow the instructions on the bill. 

(iv)  If payment is not received within 30 calendar days of the date of the NFC bill, then interest will start to accrue on the total amount requested in the letter for the full amount of the delinquent debt, including the principal and any other charges due. 

(v)  After 30 calendar days, NFC will send up to three demand letters, which provide payment options as per 7 CFR Part 1403.  If there is no response after the three demand letters, NFC will then transfer the debt to the U.S. Department of the Treasury to offset the payment against any other payments issued to the participant. 

(vi)  Collection of amounts due will follow the Debt Collection Improvement Act of 1966 procedures and will accrue interest at the current value of funds rate published in the Federal Register by the U.S. Department of the Treasury.  The outstanding debt is referred to the Treasury Offset Program.

510.12  General Information for Making HEL and Wetland Determinations

A.  Purpose

NRCS will make the following determinations for HELC/WC provisions administration as follows:

(i)  Whether land is highly erodible

(ii)  Whether land contains areas that are subject to the WC provisions

B.  NRCS Responsibilities

(1)  NRCS will complete HELC/WC determinations for tracts under the following circumstances:

(i)  In response to Forms AD-1026 or CPA-038

(ii)  In response to Form FSA-569.

(2)  NRCS will—

(i)  Stamp the Forms AD-1026 or CPA-038 with the date when received.

(ii)  Establish priorities among the determination requests.

(iii)  Complete determinations according to this part.

C.  Timeframes for Completion of HELC/WC Determinations

All requests for HELC/WC determinations shall be made as follows:

(i)  In-office determinations shall be issued within 15 working days of receipt of the Form AD-1026 or CPA-038

(ii)  Determinations that require an onsite review shall be issued within 60 working days of receipt of the forms AD-1026 or CPA-038

(iii)  Persons who are subject to conservation compliance for the first time due to the passage of the Agricultural Act of 2014 and relinking of compliance with crop insurance subsidy benefits will receive priority for technical assistance in implementing the HELC and WC provisions.  Wetlands converted due to lack of USDA providing timely assistance may be eligible for the Converted Wetland Timely Assistance (CWTA) exemption.  See instructions for the CWTA label in part 514 of this manual.

Note:  Onsite determinations may be delayed until site conditions are favorable for the evaluation of soils, hydrology, or vegetation (7 CFR Section 12.6(c)(7)).  When an unusually large number of requests for determinations have been submitted by FSA or USDA program participants, NRCS employees at the local level and, if necessary, the State level shall coordinate completion of the requests so that timely determinations can be made.

D.  Priority of Determinations

(1)  Owing to heavy workload, NRCS may not be able to complete all requests for HEL and/or wetland determinations.

(2)  The following priorities have been established through agreement with FSA and NRCS:

Priority

Situation

1

·         FSA-Farm Credit borrowers and inventory properties.

·         Requests from a Program Agency for certification purposes.

NRCS has agreed, through a Memorandum of Understanding (MOU), to process determinations within 15 working days when needed by FSA-Farm Credit to process a direct operating loan.

2

Question 9 on Form AD- 1026— If this question is answered YES,

NRCS will make an HEL determination.

Questions 10A,10B on Form AD–1026— If either of these questions are answered YES,

NRCS will make a certified wetland determination.

3

FSA-Farm Credit specifically requests NRCS determinations.

4

All other USDA program participants.

5

Program applicants who are not USDA program participants.  The following requirements apply:

·         NRCS will make HEL or wetland determinations as requested.

·         Other NRCS technical assistance can be provided according to established priorities.

510.13  Exhibit

    Equitable Contribution Collection Notice


  
    

 
  

[M_180_NFSAM_510_B - 5th Ed., Amend. 1 - December 2015]

Subpart C – NRCS Responsibilities
Subpart C – NRCS Responsibilities  

  

510.20  Responsibilities Assigned to NRCS

A.  General Responsibilities

NRCS is responsible for developing, implementing, and maintaining the following activities and information in relation to the HELC/WC provisions.

(i)  Prepare, maintain, and make available to the public lists of—

·         Highly erodible soil map unit legends.

·         Hydric soil map unit legends.

·         Hydrophytic plant lists.

(ii)  Coordinate technical assistance provided to conservation districts in the discharge of these responsibilities with other Federal, State, and local agencies involved in implementation of HELC/WC.

(iii)  Inform conservation district officials about the status of HELC and WC determinations, reconsiderations, and appeals.

(iv)  Prepare conservation systems in conformance with the FOTG so the conservation district may approve or disapprove the plans or systems.

(v)  Keep conservation district officials informed on status of application of conservation systems.

(vi)  Provide technical assistance to identify suitable lands for FSA-Farm Credit, U.S. Fish and Wildlife Service (FWS), and other interested agencies.

(vii)  Conduct environmental evaluations, including cultural resource considerations, in compliance with the following:

(viii)  National Environmental Policy Act

(ix)  National Historic Preservation Act of 1966, PL 89–665, as amended, relative to applicable HEL and wetland activities

(x)  Endangered Species Act

(xi)  Monitor and report progress regarding HEL and WC implementation

(xii)  Persons who are subject to conservation compliance for the first time due to the passage of the Agricultural Act of 2014 and relinking of compliance with crop insurance subsidy benefits will receive priority for technical assistance in implementing the HELC and WC provisions.

Note:  For all HEL and wetland determinations on all cropland fields marked “ü” or "X" on the aerial photocopy, an office determination will be made within 15 calendar days from receipt of the form AD-1026, or an onsite determination within 60 calendar days unless weather conditions or a heavy workload do not permit, in which case the determinations will be made as soon as practical.

B.  Specific HELC Responsibilities

(1)  NRCS is responsible for the following activities that relate specifically to the HELC provisions:

(i)  Provide technical assistance for the following:

·         Conservation planning when requested

·         Applying conservation systems to the land upon request

(ii)  Make determinations for the following:

·         Highly erodible soil map units

·         Predominance of HEL in a field

(iii)  Application of a conservation system that meets the soil reduction and/or improvement criteria

(iv)  Qualifications for temporary variances from the requirements of a conservation system

(v)  Identification of NRCS error or misinformation

(2)  Completing compliance reviews for the following:

(i)  Regularly scheduled reviews

(ii)  Response to an FSA–569

(iii)  Response to a whistleblower complaint

(3)  Provide FSA information on an AD–1026B for making tenant exemption determinations and provide conservation planning assistance to the tenant.

(4)  Provide FSA information on an AD–1068 for making good faith exemptions.

(5)  Provide assistance for conservation system revisions for USDA participant reinstatement.

C.  Specific WC Responsibilities

(1)  NRCS responsibilities that specifically apply to WC are as follows:

(2)  Determine whether—

(i)  Land meets wetland criteria.

(ii)  Food Security Act wetland exemptions apply.

(iii)  Production of an agricultural commodity on a wetland is possible under natural conditions without action by the person that would destroy the natural wetland characteristics.

(iv)  Production of an agricultural commodity on certain converted wetlands would have a minimal effect on the hydrological and biological aspects of the wetland.

(v)  Conversion of a wetland was for the purpose of, or has the effect of making, the production of an agricultural commodity possible.

(vi)  A farmed wetland or a farmed wetland pasture is abandoned.

(vii)  Maintenance of existing drainage exceeds scope and effect of the original drainage.

(viii)  A site warrants a minimal effect determination.

(ix)  A plan and schedule for restoration, mitigation, or replacement of a converted wetland is adequate.

(x)  Restoration under an approved plan is accomplished according to schedule. 

(3)  Complete compliance reviews for—

(i)  Regularly scheduled review.

(ii)  Response to an FSA–569.

(iii)  Response to a whistleblower complaint.

(4)  Provide FSA information on Form AD-1069 for Good Faith Exemptions.

510.21  NRCS Responsibilities by Organizational Level

A.  National Headquarters

The following are the responsibilities of National Headquarters:

 

The Deputy Chief for Science and Technology is responsible for providing national leadership, policy coordination, and program implementation—

 

·         Within NRCS

·         With other agencies relative to HELC/WC provisions relating to:

–                    Conservation practice standards

–                    Establishing and maintaining technical criteria

–                    Planning and application assistance standards for technical service providers

·         In establishing and implementing internal management control systems including the following:

–                    Conservation compliance reviews

–                    Quality assurance

–                    Program evaluation

Note:  Coordination with the Deputy Chief for Strategic Planning and Accountability is required for internal management control systems.

The appropriate Division Director is responsible for—

 

·         Coordinating and implementing conservation system planning.

·         Consulting with the Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (USACE), and FWS on policies and procedures relating to HELC policy.

·         Coordinating with conservation districts, the National Association of State Conservation Agencies, and other partners.

·         Approving State supplements to the NFSAM for HELC.

·         Providing advice to the States, FSA, and the National Appeals Division (NAD) on wetland and HEL appeals.

·         Completing compliance reviews, quality reviews, and program evaluations.

·         Formulating policy for conservation easements.

·         Wetlands conservation elements of NFSAM, including conservation easements.

·         Wetlands evaluation procedures.

·         Consulting with FWS relative to—

–         Wetland identification.

–         Minimal effect.

·         Policy formulation with the White House Wetlands Working Group.

·         Consulting with EPA, USACE, and FWS on policies and procedures relating to wetlands conservation policy and procedures.

·         Assisting with State review procedures, quality assurance, and program evaluation regarding wetlands conservation.

Deputy Chief for Strategic Planning and Accountability and the Director of the Operations Management and Oversight Division (OMOD)

·         Consistency among States on implementation.

·         Approval of State quality control plans

B.  State Responsibilities

The State Conservationist (STC) has overall responsibilities for HELC/WC implementation within the State as follows:

(i)  Coordinating NRCS responsibilities with—

·         Other USDA agencies.

·         FWS, USACE, and EPA.

·         Conservation districts.

·         Other agencies as necessary.

(ii)  Delegating responsibilities for implementation to State, area, or field office staff, including—

·         Approving conservation plans or systems in the absence of a conservation district.

·         Maintaining records, providing reports, and reporting progress.

·         Conducting compliance reviews.

·         Conducting quality reviews.

·         Making determinations on NRCS employees' farms.

·         Approving the FOTG.

·         Approving acceptable conservation systems for the FOTG maintaining current lists and maps.

(iii)  Establishing, approving, maintaining, and distributing current lists of:

·         Highly erodible soil map units

·         Hydric soils

·         Hydrophytic vegetation

·         Threatened and endangered species

·         HELC/WC operations

(iv)  Approving temporary variances for persons because of conditions beyond the person's control or to deal with special problems

(v)  Coordinating with FSA to review and provide technical concurrence for Good Faith Exemptions

(vi)  Quality control

(vii)  Establishing a quality control plan, maintaining high quality work, and conducting training

(viii)  Representing NRCS at NAD hearings

(ix)  Coordinating with FSA and the NRCS State office on HELC/WC and all conservation program appeals at the State level

(x)  Chairing the State Technical Committee and providing guidance on HELC, WC, and other USDA programs

(xi)  Reporting possible violations

C.  Area Conservationist (AC) or Designee

If delegated by the STC, the AC is responsible for managing and supervising HELC/WC activities within the area as follows:

(i)  Managing and supervising HELC/WC activities within the area

(ii)  Carrying out other responsibilities as delegated by the STC

(iii)  Ensuring that all quality standards are achieved

(iv)  Implementing assigned components of the State quality control plan

(v)  Scheduling and providing training

(vi)  Assisting district conservationists (DCs) in the establishment of priorities for scheduling technical assistance

(vii)  Providing second-level approval on recurring technical and minor (AM) variances

(viii)  Ensuring that adverse determinations are handled in a timely manner

(ix)  Providing technical training and technical assistance to the DC on all conservation program appeals

D.  Field Office Responsibilities

The DC is responsible for the following:

(i)  Making technical determinations of HEL and wetlands, and notifying the person of such determinations

(ii)  Coordinating technical assistance with the conservation district and county offices of other USDA agencies

(iii)  Providing technical assistance in the development and application of conservation systems

(iv)  Providing technical assistance for preparing conservation plans on FSA-Farm Credit inventory farms

(v)  Participating on easement teams

(vi)  Executing assigned components of a quality control plan

(vii)  Investigating reports of possible violations

(viii)  Conducting conservation compliance reviews as assigned by STC/AC

(ix)  Handling determinations in a timely manner

(x)  Certifying wetland determinations

(xi)  Consulting with FWS on any easement restrictions before completing scope and effect on FWS easement sites

(xii)  Making minimal effect determinations and mitigation plans

(xiii)  Developing and maintaining county lists and maps, as follows:

·         Highly erodible map units

·         Hydric soils

·         Hydrophytic vegetation

(xiv)  Maintaining wetland inventories and maps of certified wetland determinations where completed

(xv)  Assisting FSA in maintaining a list of certified wetland determinations

(xvi)  Maintaining records, providing reports, and reporting progress

(xvii)  Provide technical review and assistance to FSA and the NRCS State office on all conservation program appeals

(xviii)  Performing compliance reviews as required in NFSAM, Part 518

(xix)  Reconciling data


    
   

   
    

[M_180_NFSAM_510_C - 5th Ed. Amend. 1 - December 2015]

Subpart D - Responsibilities of Other Agencies

           510.30  Conservation District (CD) Responsibilities

A.  CD Responsibilities

CDs are responsible for the following:

(i)  Providing information to NRCS and FSA during the appeal process that may help FSA reach a decision.

(ii)  Participating in the field visit with the designated conservationist, if the CD wishes to participate.

(iii)  Approving conservation systems and revisions that meet CD program objectives.

(iv)  When NRCS presents systems for approval, considering the following:

·          The degree of control the person has over the land for the period of the crop rotation and other practices specified in the conservation system.

·          Other unusual situations regarding land use, treatment, or operations when approving the conservation system.

(v)  Consulting with the FSA County Committee when appropriate.

(vi)  Actively participating in developing and reviewing, the FOTG, including the economic practicability, feasibility, and social acceptability of the conservation systems included in the FOTG.

(vii)  Providing guidance for overall program direction.

(viii)  Establishing general servicing priorities.

(ix)  Integrating HELC/WC provisions with State and local conservation programs.

(x)  Participating on State Technical Committee (optional).

(xi)  Participating in status review process.

(xii)  Providing FSA with information regarding good faith exemptions.

(xiii)  Providing input to NRCS in the development of wetland conservation plans and mitigation plans.

(xiv)  Advising NRCS on minimal effect determinations.

B.  Joint Responsibilities of CD with USDA Agencies

CDs and USDA agencies administering the HELC/WC provisions are encouraged to expand cooperative working arrangements and establish joint responsibilities for helping to achieve the conservation objectives of the HELC/WC provisions by—

(i)  Consulting with FSA regarding CD approval of conservation systems.

(ii)  Assisting in servicing the HELC/WC workload where the conservation objectives of HELC/WC are consistent with the objectives of CDs.

(iii)  Initiating and promoting information and education on HELC/WC provisions.

(iv)  Assisting NRCS in determining and documenting a need for regional or individual temporary variances.

(v)  Keeping fully informed of progress in servicing the HELC/WC workload.

(vi)  Consulting with NRCS on the implementation of conservation systems, and assisting USDA participants in resolving problems of not applying a conservation system.

(vii)  Reviewing and providing information for the case file on "not applying" findings in the status review/appeal process.

(viii)  Encouraging USDA participants to voluntarily become district cooperators and develop, as resources permit, a conservation plan for the entire farm.

(ix)  Coordinating Federal, State, and local resources to achieve common conservation goals and objectives relative to erosion reduction and wetland protection.

(x)  Acting as an enforcement authority and/or management authority for conservation easements if they are designated by FSA-Farm Credit.

(xi)  Counseling USDA employees and persons in the appeals process.

(xii)  Coordinating with NRCS and other agencies to set conservation resource treatment priorities.

           510.31  Other Agency Responsibilities

A.  FSA Responsibilities for HELC/WC

FSA has responsibilities for administering the following HELC/WC provisions, and specific guidelines for these provisions are provided in FSA Handbook 6–CP.

FSA will—

·          Establish field/tract boundaries, field numbers, and acreage on official FSA maps.

·          Keep up-to-date data through the reconstitution process.

·          Maintain official spatial records of HEL determinations, wetland determinations, and certified wetland determinations on aerial photography.

·          Determine whether a landlord qualifies for an exemption.

·          Determine whether a tenant qualifies for the tenant exemption.

·          Determine whether the conversion of a wetland commenced before December 23, 1985.

·          Determine whether the conversion of a wetland was caused by a third party.

·          Determine whether an agricultural commodity was planted on wetland that was converted after December 23, 1985.

·          Determine whether persons are eligible for program benefits.

·          Determine whether persons qualify for a good faith exemption.

·          Determine persons who will be ineligible for USDA benefits as the result of production of an agricultural commodity on HEL or converted wetland.

·          Determine whether land was converted from native vegetation, such as rangeland or woodland, to crop production after December 23, 1985.

·          Advise new owners and operators of a tract of previous determinations and the status of conservation system on the tract.

·          Advise persons wishing to become reinstated for eligibility of benefits to request conservation system planning assistance from NRCS.

·          Serve on the State Technical Committee.

·          Determine whether proceeds of a farm program loan made, insured, or guaranteed by FSA-Farm Credit will be used for a purpose that will contribute to excessive erosion on an HEL or to the conversion of a wetland to produce an agricultural commodity.

·          Administer the conservation easement provisions on inventory properties and on certain borrowers' lands that qualify for debt forgiveness on a portion of their land.

·          Require borrowers to obtain a Form AD-1026 and develop and use conservation systems on HEL that are planted to an agricultural commodity.

·          Ensure that HEL, wetland, farmed wetland, prior converted wetland, farmed wetland pastures, and converted wetland are identified by NRCS on FSA-Farm Credit inventory farms.

·          Hear appeals of technical determinations made for HELC /WC provisions and all conservation programs authorized under Title XII of the Food Security Act of 1985, as amended.

·          Determine on request whether application of a conservation system causes a person undue economic hardship.

B.  Extension Service Responsibilities

Cooperative Extension Service (CES) will—

(i)  Assist with USDA information and education activities relative to the HELC/WC provisions

(ii)  Serve on the State Technical Committee

C.  FWS Responsibilities

FWS will—

(i)  Upon request, provide technical assistance to NRCS for—

·          Regulations

·          Mitigation plans

·          Wetland identification procedures

·          Minimal effect determinations

·          Training

·          Wetland function and value assessment

(ii)  Serve on the State Technical Committee.

(iii)  Provide local NRCS and FSA offices with up-to-date maps of areas in the county with FWS easements.

 

D.  EPA Responsibilities

EPA has ultimate authority to determine the geographic scope of waters of the United States subject to jurisdiction under the Clean Water Act, including the Section 404 regulatory program.

E.  COE Responsibilities

The Corps conducts jurisdictional delineations for the day-to-day administration of the Clean Water Act, Section 404.

[M_180_NFSAM_510_D - Fifth Edition - November 2010]

Part 511 - Highly Erodible Land (HEL) Determinations

Subpart A - Developing Soil Data for HEL Determinations


511.0  HEL Soil Erodibility Index

A.  Soil Erodibility Index (EI)

The soil EI is the measure selected to determine whether a soil map unit is highly erodible.   

 

B.  Determining Potential Erodibility (PE)

The PE of a soil map unit is calculated as follows:

(i)  Sheet and Rill Erosion, using the Universal Soil Loss Equation (USLE) [7CFR Section 12.21(a)(1)]: PE = R x K x LS where:

·          R = rainfall and runoff.

·          K = susceptibility of the soil to water erosion.

·          LS = the combined effects of slope length and steepness.

(ii)  Wind Erosion, using the Wind Erosion Equation (WEQ) [7 CFR Section 12.21(a)(2)]:  PE = C x I, where:

·          C = climatic characterization of windspeed and surface soil moisture expressed as a percentage.

(iii)  I = the susceptibility of the soil to wind erosion.

Note:  The factor values for the equations used in the soil-loss equations are those in effect as of January 1, 1990.

C.  Calculating EI

The EI for a soil map unit is determined by dividing the potential erodibility for the soil map unit by the soil loss tolerance (T) value established for the soil in the FOTG as of January 1, 1990 [7 CFR Section 12.21(a)].

 

Erosion Equation

Calculation

Sheet and Rill Erosion (USLE)

 

R x K x LS   = EI

       T

Wind Erosion (WEQ)

 

C x I = EI

   T

Note:  The Highly Erodible Map Unit List contained in the FOTG as of January 1, 1990, will be used for all EI calculations, including sodbuster determinations and reviews of previous determinations.

D.  Highly Erodible Soil Map Units

A soil map unit with an EI of 8 or greater is considered to be highly erodible [7 CFR Section 12.21(b)].

E.  Potentially Highly Erodible Map Units

Whenever a soil map unit description contains a range of a slope length and steepness characteristics that produce a range of LS values which result in RKLS/T quotients both above and below 8, the soil map unit will be entered on the list of highly erodible soil map units as “potentially highly erodible.” [7 CFR Section 12.21(c)]

511.1  Highly Erodible Soil Map Unit List

A.  Highly Erodible Soil Map Unit List

The Highly Erodible Soil Map Unit List is a list of all soil map units (names and symbols) in an area. [7 CFR Section 12.20(b)]  These soil map units are specifically categorized as being—

(i)  Highly Erodible (HEL) from wind erosion

(ii)  HEL or Potentially Highly Erodible (PHEL) from sheet and rill erosion.

Note:  When a field determination includes PHEL soil map units, the HEL determination shall be verified through a field review to determine the correct LS factor value for that specific field in order to finalize the field HEL determination. [7 CFR Section 12.21(c)]  If necessary, a new determination shall be issued when the field verification changes the original office HEL determination label.

B.  HEL Soil Map Unit List Area

(1)  The HEL Soil Map Unit List developed as of January 1, 1990, will be used for all HEL determinations.

(2)  The HEL Soil Map Unit List shall be developed and maintained for any of the following:

(i)  Each soil survey area

(ii)  Each FOTG area

(iii)  Other geographic areas as determined by the STC.

C.  HEL Soil Map Units and Soil Map Unit Components

The percentage of HEL soil map unit components that are required to achieve predominance of a soil map unit will be established by the STC.  Determine whether a soil map unit is considered highly erodible according to the following table. 

IF the soil map unit...

AND...

THEN...

Is named for either—

·          A single type of soil or

·          A single miscellaneous area,

Either the named—

·          Soil is identified as highly erodible, or

·          Miscellaneous area is identified as highly erodible,

The entire soil map unit is considered highly erodible.

Is named for two or more—

·          Types of soils or

·          Miscellaneous areas,

 

 

A predominance of the named components are all highly erodible,

Less than a predominance of the named components are highly erodible,

The soil map unit is not considered highly erodible.

Contains highly erodible soils only as inclusions.

 

The soil map unit is not considered highly erodible.

D.  Filing HEL Soil Map Unit Lists

The HEL Soil Map Unit List shall be a part of Section II of the FOTG.

E.  Tenure of HEL Soil Map Unit List

The HEL Soil Map Unit List that was in effect January 1, 1990, will remain unchanged for HEL determinations.

F.  Areas with More Than One “R” or “C” Value

(1)  A separate HEL soil map unit list will be developed for soil survey areas or counties having more than one “R” or “C” factor value. 

(2)  A map showing the boundaries of each individual C or R factor value area will be placed in Section I of the FOTG.

511.2  Developing HEL Soil Map Unit Lists Using an Existing Soil Survey

A.  List of Soil Map Units

(1)  A list of soil map units may be available as follows:

(i)  FOTG

(ii)  Published soil survey

(2)  Determine if the list is up-to-date by comparing it against Section II of the FOTG on file in the NRCS office.

B.  Needs for Erodibility Calculations

Determine erodibility calculations in each soil survey area or county for each soil map unit, including all components of a complex, association, or undifferentiated unit.

C.  Procedure for Calculating Soil Map Unit Erodibility

When calculating erodibility for soil map units, use the following table for guidance.

To DETERMINE...

USE...

The LS value required for a soil map unit to be highly erodible for areas subject to sheet and rill erosion.

The following equation:

8T/RK  = LS

L and S on-site

The procedures in the National Agronomy Manual

L and S in the office

The data in the FOTG

(C*I)/T for WEQ

D.  Determining HEL Soil Map Units

A soil map unit is considered to be highly erodible when the following criteria apply:

(i)  Sheet and rill erosion areas:  The value for LS equals or exceeds 8T/RK for the shortest length and minimum percent slope.

(ii)  Wind erosion areas:  The value of CI/T equals or exceeds 8.

E.  Determining PHEL Soil Map Units

(1)  In sheet and rill erosion areas, a soil map unit is considered to be PHEL if the following criteria apply:

(i)  The value for LS that is less than 8T/RK for the shortest length and minimum percent of slope.

(ii)  The value for LS that exceeds 8T/RK for the longest length and maximum percent of slope.

(2)  Any fields with PHEL soil map units will be verified on-site to determine whether they are HEL or non-highly erodible (NHEL), as shown in the following table:

STEP

ACTION

1

Make on-site L (slope length) and S (slope percent) measurements on several representative slopes for each PHEL soil delineation.

2

Use the procedures in the National Agronomy Manual when determining LS values.

3

Determine the predominance of HEL for a map unit by comparing the total area of the delineation to that area with an EI of 8 or greater.

4

Document all decisions with supporting data placed in the case file.

511.3  Developing HEL Soil Map Unit Lists When a Completed Soil Survey is not Available

A.  Soil Survey in Progress

(1)  If a soil survey was in progress or has been started since January 1, 1990, determine if the soil mapping units added to the soil survey legend are highly erodible using the procedures set forth in NFSAM, Section 511.2.

(2)  The factor values that are to be used for soil mapping units on new or modified soil survey legends are the factor values set forth in the FOTG that were in effect as of January 1, 1990.

B.  Amending the HEL Soil Map Unit List

(1)  If a map unit discussed in paragraph 511.3(A) is HEL, it shall be appended to the HEL Soil Map Unit List of the FOTG (as of January 1, 1990), with appropriate documentation and explanation to support the addition.

(2)  The only HEL map units that will be appended to the HEL Soil Map Unit List are those that have been correlated since January 1, 1990, where the correlation has been completed according to the procedures in the National Soil Survey Handbook.

C.  Approvals

Each HEL map unit appended to the HEL Map Unit List will be dated and approved by the State Soil Scientist. 

D.  Filing and Archiving HEL Soil Map Unit Lists

(1)  The amended HEL Map Unit List will be filed in the appropriate FOTG.  All previous copies of the HEL Map Unit List shall be filed as per instructions set forth in GM 120, Part 408

(2)  Mark the HEL Soil Map Unit List that has been replaced with the following: “Superseded by HEL Map Unit List dated [enter appropriate date].”

E.  No Changes to Previously Included Soil Map Units

(1)  Under no circumstances will the soil map units previously included on the January 1, 1990, HEL Map Unit List have their classification changed.

(2)  Fields with previous HELC determinations will not be changed by any additions of soil map units to the HEL Soil Map Unit List.

[M_180_NFSAM_511_A - Fifth Edition - November 2010]

Subpart B - Determining HEL Fields for HELC Administration


511.10  Field Boundaries and Field Redefinition

A.  NRCS Responsibility in HELC Administration

NRCS will make determinations in response to the answers for questions 9 or 10 on Form AD–1026.

(i)  Determinations will be made for each field assigned a separate field number.

Note:  Separate determinations will not be made for subfields designated with alphabet (A, B, C).  Subfield determinations will be reflected in the determination for the total field (numeric designation).

(ii)  Determination for fields containing conservation practices that appear to subdivide a field, such as field strips or terraces, shall be made for the entire field, not for the individual strip or terrace.

(iii)  Determinations for the field’s assigned multi-tract numbers shall be made for the field(s), not the tract.

B.  Field Redefinitions

FSA has the sole responsibility for field redefinition, including the following:

(i)  Dividing a field into two or more fields when a tract is divided into two or more tracts.

(ii)  Combining two or more fields into one field.

(iii)  Making a field redetermination at the request of the USDA participant.

(iv)  Separating HEL from NHEL in a field, if the—

·          HEL units are contiguous

·          HEL units are manageable as one unit

·          Separation is beneficial in the application of a conservation system

Note:  Fields may not be combined to avoid a determination of HEL [7 CFR Section12.22(c)].  Transfer of field boundaries to new aerial photography, including digitizing common land unit boundaries, shall not be the trigger for a new HEL determination.

C.  Impacts of Changing Field Boundaries

When HEL and NHEL fields are combined, the new field will first be analyzed to determine if the 33 1/3 percent or the 50-acre rule apply in determining HEL predominance (7 CFR Section 12.22). 

(i)  If the entirety of the new field contains at least 33 1/3 percent or 50 acres or more of HEL soil mapping units, then the entire field is HEL.

(ii)  If the new field does not meet the HEL 33 1/3 percent or the 50-acre rule, then the area of the original—

·          HEL field will continue to be HEL

·          NHEL field will remain labeled NHEL

Note:  This situation will allow both an NHEL and an HEL label in a single field.  FSA shall maintain the field boundary line on the aerial photograph that existed before the USDA participant combined the fields, connecting each with a bracket to indicate that the areas have been combined into one field.

D.  Conservation Reserve Program (CRP) Acreage and Determination Labels

(1)  When land from a CRP contract is returned to agricultural production, and the acreage was previously part of a larger field with an existing HEL determination, the CRP area will carry the same determination label as the original, larger field unless the operator intends to farm the CRP area differently from the original, larger field. [7 CFR Section 12.23(d)]

(2)  If no determination was completed prior to entry of the acreage into CRP, an HEL determination shall be made according to NFSAM, Section 511.11.

511.11  Determining Highly Erodible Fields

A.  Basis for Determining Highly Erodible Fields

(1)  Determinations will be completed for all fields within a tract or multi-tract.

(2)  The statutory provisions require that HEL determinations be based on the definition of a field within a farm, as follows:

Definition:  A field is defined as a part of a farm that is separated from the balance of the farm by permanent boundaries, such as fences, permanent waterways, woodlands, and crop lines (in cases where farming practices make it probable that the crop line is not subject to change).  (7 CFR Section 12.2)

(3)  A field will be subject to the HELC provisions if it is determined to be highly erodible.

B.  Preparing for Making HEL Determinations

When FSA refers to Form AD–1026 to NRCS, the following data will be used to make HEL determinations:

(i)  Information included on the Form AD–1026, aerial photocopies, and any attachments.

(ii)  The Highly Erodible Soil Map Unit List.  The Highly Erodible Soil Map Unit List and associated FOTG data that was prepared as of January 1, 1990, will be used for ALL HEL determinations.

(iii)  Soil survey maps.

(iv)  Previous HEL determinations completed on the tract.

C.  Determine HEL by Field

This table gives the conditions under which fields will be determined HEL or NHEL.

IF the highly erodible soil map unit in a field…

THEN the field is…

Constitute 33.33 percent or more of the acreage in the field,

HEL

Equals 50 or more acres,

 

Do not constitute 33.33 percent nor equal 50 acres or more,

NHEL

D.  HEL Determination Labels

The following HEL identification labels shall be recorded on the aerial photocopies and the official aerial photography maintained by FSA:

(i)  HEL — the field is composed of predominantly highly erodible soil mapping units and is subject to the HELC compliance provisions.

(ii)  NHEL — the field is not composed of predominantly highly erodible soil mapping units and is not subject to the HELC compliance provisions.

E.  Determination Considerations

(1)  Portions of the soil map unit area outside of the field boundary will not be considered in the erodibility determination except to determine slope length as indicated in the National Agronomy Manual.

(2)  Fields initially determined as being PHEL will be reviewed in the field to determined if the field is HEL or NHEL.  The on-site investigation will be fully documented to support the determination, including the measurements used to support the LS factor value generated.  (7 CFR Section 12.21(c))

(3)  Field observation data used to make erodibility determinations will supersede any factors used in making office determinations of HEL.

F.  Multi-tract Determinations

Determinations for fields assigned multi-tract numbers shall be made as follows:

(i)  Use field boundaries for making HEL determinations on land for which there was no prior HEL determination, including fields defined as multi-tracts.

(ii)  Re-determine HEL using the criteria for highly erodible fields in NFSAM, Section 511.11 if both of the following apply:

·          The original HEL determination on the land was made using tract subdivisions of a field rather than field boundaries within a farm.

·          The producer has requested the redetermination in writing.

G.  Providing HEL Determination Notification

Notify all USDA participant signatories on Form AD–1026, including all primary owners and tenants, as well as FSA, of the HEL determination.  The notification shall be in writing and will be issued not later than 10 days after completing the determination.  Examples of letters of notification are in the Conservation Programs Manual, Part 510, Subpart G, Exhibits.  Notification shall include the following information:

(i)  The type of determination.

(ii)  The basis for making the determination (i.e., analysis of the soil mapping unit information).

(iii)  Appeal and Mediation information.

(iv)  A copy of the determination.

(v)  Other material or documentation needed to support the technical determination.

H.  HEL Field Records to Provide

For all HEL determinations, provide the following records to the persons listed in paragraph 511.11(G) above:

(i)  A copy of the official HEL determination.

(ii)  A copy of the completed FSA aerial photocopy with HEL/NHEL designations.

(iii)  The technical determination notification letter.

H.  Case File Records Required

The following documents will be maintained as specified in GM 120, Part 408, in the appropriate case file folder:

(i)  Form AD–1026 and Form AD–1026A

(ii)  Form NRCS–CPA–026

(iii)  Completed FSA aerial photocopy with HEL/NHEL designations

(iv)  HEL calculations including field documentation of PHEL soil map units

(v)  Resource inventory data

(vi)  Other material used for making the required determinations.

511.12  Revising HEL Field Determinations

A.  Revising Determinations

The following table provides NRCS policy on revising HEL determinations:

IF NRCS receives Form AD–1026...

AND...

THEN...

With a statement in the remarks section that the original field boundaries for the tract are incorrect,

An aerial photocopy is provided with correct boundaries,

Complete a new HEL determination using the 33 1/3 or 50-acre rule.

With an aerial photocopy showing new field boundaries resulting from dividing or combining one or more existing fields,

A previously determined HEL field is combined with NHEL or a previously undetermined area,

Complete a new HEL determination for the new field using the 33 1/3 or 50-acre rule.  If the new field is—

·          HEL, then label the entire field HEL.

·          NHEL, then the area of the original HEL field will continue to be designated HEL; the new NHEL area will be designated NHEL.

An NHEL field is split, or NHEL fields are combined,

Complete a new HEL determination.

A previous HEL field is split,

Any field with remaining HEL soil map units remains as HEL.  Fields with no HEL soil map units are NHEL.

With a request by a participant that HEL be separated from NHEL in the field,

The participant establishes a permanent boundary to separate HEL from NHEL that meets FSA requirements for HEL delineations,

Complete the new HEL determinations using the new field boundaries.

When fields are split and redefined for CRP eligibility purposes,

 

Make a new determination for the land remaining in the former field.

Note:  FSA will enter the circumstances regarding the redefinition in the remarks section of Form AD-1026.

B.  Notification of Changes

A new Form NRCS–CPA–026 is to be prepared and distributed when a field redefinition meets the following criteria:

IF the field redefinition results from…

AND the resulting determination is…

THEN NRCS will…

Splitting a field or combining two or more fields,

An NHEL field(s),

Not need to issue a new Form NRCS–CPA–026.

NRCS will make remarks on the Form AD–1026 that the new field is NHEL.  Sign, date, and return the Form AD-1026 to FSA.

An HEL field(s),

Notify FSA and the USDA participant via a new Form NRCS–CPA-026.

511.13  Incorrect Determinations

A.  Technical Errors

When a technical or other error is found, NRCS shall immediately take appropriate action to correct the error(s) and provide notification to all signatories on Form AD-1026.

B.  Correcting HEL Determinations

(1)  Incorrect HEL determinations will not result in the ineligibility of benefits for any prior years or in the year that the incorrect determination is found.  (7 CFR Section 12.11)

(2)  When an incorrect HEL determination is found, NRCS will—

(i)  Correct the determination.

(ii)  Notify FSA and all signatories listed on Form AD-1026.

(iii)  Assist the USDA participant with developing or revision of a conservation plan or conservation system that will meet the HELC requirements, if needed.

(iv)  Provide appeal and mediation rights.  (See CPM, Part 510).

[M_180_NFSAM_511_B - Fifth Edition - November 2010]

Part 512 - Conservaton Systems and Plans

Subpart A - Conservation Systems


512.0  Conservation System Requirements

A.  The Relationship between a Conservation Plan and a Conservation System

(1)  A conservation system designed to meet the HELC requirements is a combination of one or more conservation measures or management practices. When applied to the land, the conservation system will bring either a substantial reduction in soil erosion or, in the case of land converted from native vegetation, allow for no substantial increase in soil erosion.

(2)  An approved HELC conservation plan is a document that describes the application and maintenance of an approved conservation system.

B.  Standards for a Conservation System

Conservation systems must be based on the following:

(i)  Local resource conditions.

(ii)  Available conservation system technology.

(iii)  The standards and guidelines contained in the local FOTG.

·          A conservation system that is being used when planting agricultural commodities on HEL cropland must meet one of the following definitions:

--  Provide for a substantial reduction in soil erosion when producing agricultural     commodities on HEL cropland where a prior cropping history has been     established.

--  Permit no substantial increase in soil erosion when agricultural commodities     are produced on HEL cropland converted from native vegetation after     December 23, 1985.

C.  Conservation System Requirements

(1)  A conservation system must provide for a substantial reduction in soil erosion from the “pre- plan” level (the condition that existed before conservation measures were applied).  [7 CFR Section 12.2(a)]

(2)  The conservation system shall include all treatments and measures needed to meet the HELC requirements, including treatment required—

·          To result in a substantial reduction in erosion.

·          To prohibit a substantial increase in erosion.

·          For the control of—

--  Sheet and rill erosion

                          --  Wind erosion

--  Ephemeral gully erosion

(3)  Conservation systems approved prior to July 3, 1996, as set forth in the FOTG meet these requirements set forth in NFSAM paragraphs 512.0(B) and 512.0(C), provided that the USDA participant continues to actively apply and maintain the conservation system.

(4)  The Conservation District shall have a full opportunity to participate in the development, review, and approval of all conservation systems.

D.  Conservation Requirement on HEL and Compliance Certification Statement

(1)  USDA participants will not be found ineligible for USDA benefits if a conservation system that meets the HEL requirements in the FOTG is used when producing annual agricultural commodities on HEL cropland.

(2)  USDA participants must certify compliance with the HELC provisions on Forms AD-1026 or AD-1026U, as appropriate, when USDA benefits are requested as follows:

“By signing Form AD-1026, Item 12, the producer certifies receipt of this form, and unless an exemption has been granted by USDA, agrees to the following on any farms in which such person has an interest:  Not plant or produce an agricultural commodity on highly erodible fields unless actively applying an approved conservation plan or maintaining a fully applied conservation system.”

E.  What is Substantial Reduction?

When comparing the annual level of erosion before conservation system application to the expected annual level of erosion after conservation system application, it is necessary to compare the same portion of the field(s) in determining if a conservation system application meets the HEL requirements (7 CFR Section 12.23(b)).  The level of substantial reduction in erosion a USDA participant must obtain is set forth in the following table:

IF the field…

THEN a substantial reduction…

Was used to produce crops prior to December 23, 1985, and the conservation system or plan has been approved, applied, and maintained prior to July 3, 1996,

Has already been met, providing the plan or system is continued to be applied and maintained, and—

·          The same person continues to use the original conservation system, or revises the system to provide an equal or greater level of erosion protection.

or

·          The new owner and/or operator accepts the approved conservation system or plan and continues to apply and maintain the conservation system or an equivalent conservation system.

Was used to produce crops prior to December 23, 1985, and has a conservation system or plan that has been approved after July 3, 1996,

Is a 75 percent reduction of the potential erodibility (PE) OR not more than two times the soil loss tolerance level, whichever is less, for the predominant highly erodible soil map unit in the highly erodible field.

Has no history of crop production prior to July 3,1996,

Does not apply.  Furthermore, in no case will the soil erosion level for sodbusted land exceed the soil loss tolerance.  (See NFSAM, paragraph 512.0(F).)

F.  Substantial Increase Defined

When developing a conservation system for land converted from native vegetation, a substantial increase in soil erosion is defined as any soil erosion level that is greater than the sustainable level (soil loss tolerance – [T]) of the predominant HEL soil mapping unit in the HEL field (7 CFR Section 12.23(b)).  In cases of determining substantial increase, the LS factor will be determined in the field.

G.  Conservation Field Trials

NRCS may provide opportunities, in appropriate circumstances, for persons to try new techniques or new conservation systems such as conservation field trials [7 CFR Section 12.23(c)].  NRCS shall be confident that the proposed technique or conservation system has a reasonable likelihood of success. 

The following is the procedure for approving and evaluating a conservation field trial:

Step

Action

1

Acquire approval for the field trials from the State Conservationist, following advice provided by the State Technical Committee.

2

Document the use of the field trial in the person’s conservation plan and specify within the plan the limited time period during which the field trial is in effect.

3

Evaluate the field trial results to determine if the new technique or conservation system should be included in the FOTG.

512.1  Acceptable Conservation Systems

A.  Conservation Systems Not Included in the FOTG

(1)  A USDA participant may elect to use a conservation system that is not currently included in the local FOTG.  If that is the case, it is the participant’s responsibility to demonstrate that the conservation system being used meets all HELC requirements and FOTG criteria (Part 512, Section 512.0).

(2)  Systems being applied that are not documented in a conservation plan must, at a minimum, be documented for the purpose of determining substantial erosion reduction during a Conservation Compliance Status Review.

B.  Documenting Conservation Systems

(1)  At a minimum, planning documentation should include the following:

(i)  Description of the system being applied.

(ii)  Before and after soil loss calculations, including all the factor values used to determine the soil loss.

(iii)  Conservation practices necessary to meet the minimum system requirements of the FOTG.

(2)  While the conservation plan provides a means of documenting the application of a system that meets the HELC requirements, the HELC provisions do not require that a person have a conservation plan unless a conservation plan is a specific requirement for approval of an exemption or variance (See NFSAM, Part 520.)

(3)  All conservation plans will meet the requirements of this manual, GM-180, Part 409, and Title 180, Part 600, National Planning Procedures Handbook (NPPH).

C.  Conservation System Approval Levels

Conservation systems must be developed to meet a USDA participant’s specific needs as well as meeting the HELC requirements.  Since the stated goals of the HELC provisions are to reduce or prevent excessive soil erosion, NRCS has established approval levels when conservation systems not currently in the FOTG are developed for use on highly erodible cropland.  The conservation system approval levels are as follows:

(i)  The responsible field office employee may approve the HEL conservation system if the predicted erosion rate does not exceed 2T (two times the tolerable erosion rate).

(ii)  State Conservationists may approve HEL conservation systems that have a predicted erosion rate of between 2T and 4T (four times the tolerable erosion rate).

Note:  Conservation systems developed and approved in excess of 2T must be supported by appropriate documentation to confirm the need for erosion rates in excess of 2T.

(iii)  The appropriate division director may approve conservation systems developed in excess of 4T.

D.  Conservation Systems for HEL Cropland on Expired CRP Contracts

(1)  Land being released from the CRP will not be held to a higher conservation standard than any other HEL cropland within the FOTG area [7 CFR Section 12.23(d)].

(2)  Either expired or early-release CRP acreage will be considered as cropland with a previously established conservation system when one of the following three options is met: 

(i)  Option 1 - Reinstate pre-CRP conservation system or plan that is documented in the NRCS case files, or a pre-CRP conservation system or plan in possession of the participant.

·          If the approved conservation system that the USDA participant had applied is in the participant’s possession or is documented in NRCS case files (for example, lists of conservation systems approved in the FOTG, Field Office Computing System (FOCS) conservation system lists, Conservation Assessment and Management Plan (CAMP) conservation system lists, a copy of the approved conservation plan or conservation system, or other FOTG documents), then that participant may be allowed to reinstate the use of the conservation system that was in use prior to acceptance into CRP or a conservation system with an equivalent level of soil protection (NFSAM Part 512, Section 512.0(D)). 

(ii)  Option 2 - Reinstate pre-CRP conservation system from participant records that demonstrate HEL compliance where no NRCS documented records exist.

·          If the HEL fields being returned to annually tilled agricultural crop production have a USDA cropping history prior to December 23, 1985, then the participant could conditionally qualify to use the approved conservation system that was in use prior to acceptance into CRP if he or she can produce a copy of the approved conservation system and demonstrate through other historical documents (management records showing tillage used, crop rotation, chemicals used, etc.) that the conservation system being applied was on the approved FOTG list.  In such cases, NRCS may allow that person to apply the conservation system that was used prior to enrollment into CRP. 

(iii)  Option 3 - Apply 1996 Farm Bill Acceptable Conservation Systems (ACS) criteria.

·          If neither of the above options applies, then the allowable erosion established in the 1996 Farm Bill as an ACS applies.  ACS is defined as a “75 percent reduction of potential erodibility or not more than 2T, whichever is less, for the predominant highly erodible soil map unit in the highly erodible field” (NFSAM Part 512.0(E)).  The NFSAM provides for exceptions to the 75 percent reduction in erosion potential or less than 2T maximum, but these require approval at the State Conservationist or Watershed and Landscape Programs Director levels.  Such approvals must be based on supportable documentation and are as described in NFSAM Part 512, Section 512.1(C), above.  Conservation systems developed and approved in excess of 2T must be supported by appropriate documentation to confirm the need for erosion rates in excess of 2T or 4T.

·          If structural practices are needed and must be applied in sequence, the person will have up to 2 years following the CRP contract expiration date to complete the conservation system.

·          The FSA State Committee, upon request from a program participant, may provide a variance due to undue economic hardship and allow a conservation system that may exceed the soil protection requirements referenced above. According to 16 U.S.C. Section 3812a(a)(4), “The Secretary shall ensure that the standards and guidelines permit a person to use a conservation system that . . . (4) does not cause undue economic hardship on the person applying the conservation system under the person's conservation plan.”

·          According to 7 CFR Section 12.23(j), “After a technical determination has been made, the FSA county committee shall, if a person asserts that the application of the person's conservation system would impose an undue economic hardship on the person, make a recommendation to the State FSA Committee as to whether or not the application of the conservation system would impose an undue economic hardship.  The State FSA Committee may provide the person with a variance on the basis of the hardship.”  Under this variance, and any conditions that may be required in the variance, the person will be considered to be in compliance with the applicable provisions of this part.

·          The State FSA Committee will consider relevant factors, such as the cost of installation of required conservation practices and benefits earned through programs subject to compliance with this part, and the person's general economic situation.  This variance is granted for one year at a time.

E.  Planning Conservation Systems on Revised HEL Fields

(1)  Fields having both HEL and NHEL designations due to combinations or splitting of fields will be planned to the required protection level for each portion, unless the person agrees to a greater level of protection for the NHEL portion (See NFSAM, Part 511, Section 511.10.)

(2)  FSA will maintain the field boundary line on the aerial photograph that existed before the producer combined the two fields.  The two fields will be connected by a bracket to indicate that the areas have been combined into one field.

(3)  Systems will meet the resource and HELC/WC needs and requirements of the land as given in the FOTG.

512.2  Determining Systems Based on RUSLE Technology

A.  RUSLE and Previously Approved Conservation Systems

(1)  The soil loss levels for conservation systems developed using other sheet and rill erosion soil loss prediction technology, as documented in the FOTG for HELC purposes, will be recalculated using the current version of RUSLE to establish the new soil loss value for the conservation system.

(2)  USLE factor values must not be used in RUSLE calculations; RUSLE estimates must not be compared to USLE estimates.

(3)  RUSLE soil-loss estimates must be used to make comparisons with actual RUSLE soil losses determined during a conservation system review or a Compliance Status Review.  (See NFSAM, Part 518)

(4)  Where maximum USLE or RUSLE1 CP values have been used to establish an acceptable HEL conservation system, a corresponding current version of RUSLE soil loss must be established for the same system.

(5)  All new conservation systems will be developed and/or evaluated using the current version of RUSLE.

(6)  All systems planned, approved, installed, and documented in a conservation plan meeting the criteria of the FOTG prior to July 3, 1996, will meet the HELC/WC requirements.

(7)  No system revisions will be required as a result of RUSLE implementation.  For optional revisions, see NFSAM, Section 512.3.

(8)  System revisions, for any reason, will use the RUSLE-based systems included in the FOTG.  Implementation of RUSLE will not lessen the compliance standards specified in the current FOTG.

(9)  Using RUSLE to develop or revise conservation systems shall involve the use of site-specific factor values rather than any default values used in establishing the system.  In cases where the RUSLE soil loss for a previous system falls below the T value, the planned system will include only practices necessary to reduce soil losses to T unless the producer is willing to apply more.

B.  Recalculations for Determining Compliance of Systems

(1)  Soil loss levels for systems developed using USLE technology and documented in the FOTG for conservation compliance purposes will be recalculated using the current version of RUSLE.  The new RUSLE value will establish the acceptable standard for the soil loss value of the conservation system based on the current version of RUSLE. 

(i)  USLE factor values are not to be used in RUSLE calculations nor are RUSLE estimates to be compared to USLE estimates.

(ii)  RUSLE 1 factor values are not to be used in RUSLE 2 calculations nor are RUSLE2 estimates to be compared to RUSLE 1 estimates.

(2)  Use the current version of RUSLE and current standards in the FOTG to evaluate:  systems actually applied, systems that were applied differently from those specified in the conservation plan adopted by the producer, or where a conservation plan was not developed.

C.  Compliance Reviews and RUSLE

(1)  The current version of RUSLE must be used to calculate sheet and rill erosion for all compliance reviews.  Before any person is found “not applying” (NA), the current version of RUSLE will be used to evaluate the system soil loss.

(2)  Current RUSLE technology will be used to determine if the system meets the FOTG criteria to compare the predicted RUSLE erosion level with the actual RUSLE soil loss level of the system as applied.

D.  Residue Measurements for RUSLE

RUSLE takes into account residue incorporated into the top two inches of the soil and the effects of the growing crop and surface residues on soil erosion.

512.3  Revising HEL Conservation Systems

A.  Providing Assistance for Revisions

NRCS may provide technical assistance in revising a conservation system included in a conservation plan at the request of the owner or operator [7 CFR Section 12.23(h)(2)].  Priorities for revising conservation plans will be determined locally with oversight provided by the second-level supervisor.

 

B.  When to Revise a Conservation System

(1)  An existing HEL conservation system shall be revised at the request of the owner and/or operator or because of substantial farm changes, such as the following:

(i)  Farm and/or field size

(ii)  Farm enterprise

(iii)  Conservation system

(iv)  Farm owner

(v)  Farm operator

(vi)  As a requirement of an exemption or variance

(2)  A system revision cannot occur during the status review.  However, if an approved conservation system other than the one documented in the plan is found during a compliance status review and it is the basis for a “UA,” it must be documented in a conservation plan.

(3)  Revisions may include provisions for other conservation programs and for the consolidation of all conservation planning decisions into one document.

 

C.  Technical Requirement

The revised HEL conservation system must meet current requirements of this manual and the FOTG.  (See NFSAM, Part 512, Subpart A, Conservation Systems).

 

D.  Revision Signatures

A copy of the most recent plan revision, including the signature page, will be maintained in the case file.  It shall be approved and signed by the owner and/or operator, District Conservationist, and Conservation District when changes or corrections are made.

E.  Revised Systems for a New Operator

(1)  When revising an existing conservation system for a new operator all of the following items are required:

(i)  The minimum level of protection for the new system must be the level of protection provided by the previously applied conservation system.

(ii)  All previously established conservation practices, including treatment for ephemeral gully erosion, must be maintained by the new operator.

(2)  The present conservation treatment system must be evaluated using the current version of RUSLE.

F.  Revising HEL Conservation Systems Due to an NRCS Technical Error

(1)  If an NRCS technical error has been found, the USDA participant will remain eligible for USDA benefits during the current program participation year (7 CFR Section 12.11).  However, to maintain USDA program benefit eligibility, the participant must develop and begin to implement a revised HEL conservation system before the next crop year.

(2)  If an NRCS technical error is found resulting in an incorrect HEL conservation system—

(i)  Immediately contact the USDA participant(s).

(ii)  Work with the participant in revising the HEL conservation system to fully comply with the HELC provisions.

(iii)  Schedule conservation practices for implementation as soon as possible.  Full HEL conservation system implementation must be completed no later than one year following the revision due to the NRCS technical error.

[M_180_NFSAM_512_A1 - Fifth Edition - November 2010]

Subpart B - Documenting Conservation Plans and HEL Conservation Systems


512.10  Requirements of an HEL Conservation Plan

A.  Definition of a Conservation Plan

An HEL conservation plan contains a USDA participant’s decisions regarding the conservation system being used when producing agricultural commodity crops on highly erodible cropland.  A conservation plan is a document that—

(i)  Describes the conservation system to be applied

(ii)  Documents the status of system application

(iii)  Describes the decisions of the person with respect to location, land use, tillage systems, and conservation treatment measures and schedules

(iv)  Is approved by the local soil conservation district [7 CFR Section 12.23(g)].  If there is no conservation district, a statement to indicate that NRCS is providing the approval in the absence of the conservation district will be included [7 CFR Section 12.23(g)]

B.  Conservation Plan Goals

All USDA participants will be encouraged to develop a conservation plan to document the decisions made about, and the application of, a conservation system.  At the request of the participant, NRCS shall provide technical assistance to develop a conservation plan for the purposes of documenting the decisions about an HEL conservation system.  Available workload priorities and staffing limitations shall be considered [7 CFR Section 12.23(f)].

C.  Requirements of a Conservation Plan

(1)  When required, a conservation plan that will meet the HELC requirements in the provisions will be developed according to the policy and procedures in the following NRCS policy documents:

(i)  GM-180, Part 409 Conservation Planning Policy

(ii)  National Planning Procedures Handbook (NPPH)

(iii)  GM-450, Part 401

(iv)  NFSAM, Part 512, Subpart B, Documenting Conservation Plans and HEL Conservation Systems

(2)  HEL conservation plans will meet the FOTG requirements of the FOTG in use at the time the plan is developed [7 CFR Section 12.23(a)].

D.  Working with the Landowner

Whenever possible, the conservation plan or system should be developed with both the owner and the operator.  This will ensure continuity of the plan as tenants or operators change.

E.  Contents of a Conservation Plan

The HEL conservation plan document will contain at a minimum the following: 

(i)  Statements documenting the USDA participant’s decisions regarding erosion reduction treatment for all forms of erosion identified on the HEL fields, including treatments described in Section III of the FOTG.

(ii)  Documentation of required treatment that will result in substantial reduction in the following types of erosion and meet FOTG requirements:

·          Sheet and Rill

·          Wind

·          Ephemeral Gully

(iii)  Maps and other information to meet the requirements of the NPPH and this manual.

F.  Existing Conservation Plans

Use an existing conservation plan or system to the extent possible when providing technical assistance to develop an HEL conservation plan.

G.  Details and Documentation

The following table provides specific guidance on the documentation required in an HEL conservation plan.

Item

Subject

Details and Documentation Needed

1

Aerial Photocopy

Field numbers, tract number, field acres, HEL and wetland symbols if applicable, and show location of structural practices.

2

HEL Fields

Identify each highly erodible cropland field by number.  Use the field numbers and acres assigned by FSA to the extent possible.

Note:  Conservation systems included in the FOTG will indicate that all HEL fields will have erosion reduced to the required level of erosion.  (See NFSAM, Section 512, Subpart A, Conservation Systems, Section 512.0(E)).

3

Scheduled Application of Practices

Ensure that each practice is scheduled to be applied in a logical sequence.

Conservation practices and management measures will be scheduled and applied within one year for those conservation plans developed for—

·          Highly erodible cropland fields not previously covered under an approved conservation plan.

·          Conservation plans developed as a result of a potential violation discovered while providing technical assistance.

·          Conservation plans developed by the responsible person as a result of a good-faith determination provided by FSA.

Note:  On land coming out of a CRP contract where the newly developed conservation system requires structural conservation practices or measures, an installation period not to exceed two years from the plan date will be provided to ensure that adequate outlets have been established.

4

NRCS Practice Code Number

Only practices listed in Section IV of the FOTG or local treatments described and approved in Section III of the FOTG will be used.

5

Purpose of the Practice

Describe the natural resource problem to be solved or reduced by the planned practice or conservation system.     

6

Practice Narrative

Will contain—

·          Official practice name.

·          Specifications for proper implementation.

Criteria NRCS will use to determine when the practice is satisfactorily implemented.

512.11  Developing and Approving HEL Conservation Plans

A.  Newly Acquired Land

(1)  When a USDA participant acquires land previously covered by an existing HEL conservation plan or conservation system, the level of soil erosion control established through implementation of that conservation system sets the maximum allowable soil loss for any new or revised HEL conservation plan or conservation system.

(2)  In order to maintain compliance with the HELC requirements, a producer must—

(i)  Use an HEL conservation system that meets both FOTG criteria and the soil loss reduction criteria previously established.  (See NFSAM Section 512.0(E)).

(ii)  Use the existing HEL conservation system by formally adopting, applying, and maintaining the existing HEL conservation system included in the conservation plan for the newly acquired land.

(3)  Systems documented in an official conservation plan will meet the requirements of the FOTG in use at the time the system was developed [7 CFR Section 12.23(a)].

B.  FSA - Farm Credit Inventory Farms

(1)  The 1985 Act, as amended, requires FSA Farm Credit to secure the services of NRCS on all farms held in FSA Farm Credit inventory.  After determinations are completed, FSA Farm Credit will request NRCS assistance in developing a conservation plan for inventory farms, or prepare a set of recommendations that, at a minimum, will protect the highly erodible cropland fields and wetlands.

(2)  NRCS will include the following requirements in the recommendations:

(i)  Where highly erodible cropland fields are currently in permanent protective vegetation, maintaining the vegetation will be a part of the lease or a condition of the sale.

(ii)  Where highly erodible cropland fields are currently being cropped, the fields will be seeded to permanent vegetation and the cover maintained to provide protection from erosion.

(iii)  Where it is necessary to produce crops on highly erodible cropland fields, the land will be cropped according to an approved HEL conservation system.

C.  Planning Guide for FSA Farm Credit Properties

This table provides information on providing planning assistance for FSA Farm Credit Inventory properties.

If the land...

Then the decision maker is...

Will not be sold or leased in the current year

FSA Farm Credit

Is or will be leased

FSA Farm Credit and lessee jointly

Is sold

The new owner

D.  FSA Farm Credit Borrower Farms

After determinations are made and if there is not sufficient time to develop a conservation plan for the HEL cropland, NRCS will provide information to the FSA Farm Credit County Supervisor that indicates whether the implementation of the anticipated conservation plan relative to other conservation plans in the county will be—

(i)  Low in cost

(ii)  Moderate in cost

(iii)  High in cost.

Note:  The conservation plan will become part of the terms of FSA Farm Credit long-term loans.

E.  Acceptance of the HEL Conservation Plan

(1)  A conservation plan developed at the request of the USDA participant, and used to document decisions pertaining to an HEL conservation system, will be signed as accepted by the USDA participant and the NRCS representative and approved by the local conservation district.

(2)  If there is no conservation district, a statement to indicate that NRCS is providing the approval in the absence of the conservation district will be included (7 CFR Section 12.23(g)).

F.  Conservation District Approval Process

(1)  Conservation District officials shall review and recommend conservation systems for inclusion in the local FOTG (7 CFR Section 12.23(g)).  In addition, a conservation district representative shall have an opportunity to review and approve or disapprove new and revised HEL conservation plans. 

(2)  Exception – In areas where there is no conservation district, NRCS will approve the conservation plans.  If the Conservation District—

(i)  Takes no action to approve or disapprove HEL conservation plans submitted within 45 days, then NRCS shall approve the plan if all HEL and FOTG requirements have been met.

(ii)  Approves the HEL conservation plan, upon signature of the Conservation District official, the HEL conservation plan is final.

(iii)  Disapproves the HEL conservation plan, the USDA participant may either—

·          Prepare an amended plan and resubmit that HEL conservation plan for approval; or

·          Request reconsideration of the original conservation plan by the Conservation District.

(iv)  Does not approve a specific category or group of HEL conservation plans after NRCS has determined that all HELC and FOTG requirements have been met, NRCS will approve the plans without requiring the USDA participant to use the informal administrative appeals process.

G.  Conservation District Cooperator

There is no requirement for persons requesting HELC/WC assistance to become Conservation District cooperators.  However, when working with persons, NRCS shall encourage them to consider becoming Conservation District cooperators.

H.  FSA Notification of Conservation Plan Implementation

(1)  FSA does not require notification that the USDA participant has completed the application of all practices in an HEL conservation system or conservation plan, unless specifically required for any of the following reasons:

(i)  Reinstatement following a “not actively applying determination.”

(ii)  As a condition of a “good-faith exemption.”

(2)  FSA will consider the USDA participant to be in compliance with the HELC provisions through the participant’s certification of item 12 on Form AD-1026, unless NRCS informs FSA of a violation by requesting and submitting a Form FSA-569.

512.12  Retaining and Filing HEL Conservation Plans

A.  Introduction

A case file is used to maintain records of conservation activities, including HEL and wetland determinations, for each tract.  It may also include records of other activities such as CRP, EQIP, WRP, CSP, and other conservation programs applicable to the tract.

B.  Establishing a Case File

Field offices shall establish and maintain case files for all tracts which HELC/WC determinations and HEL conservation system planning, application, or other related materials have been developed.  Case files shall be established and maintained as set forth in GM-120, Part 408.

C.  Documents to include in the case file

A case file provides the location of all information and documentation related to NRCS assistance on the tract.  The case file document should include the following:

(i)  HEL and wetland determinations made for each tract

(ii)  The conservation system for the tract

(iii)  The status of application of the conservation system and whether the system meets the HELC requirements

D.  HEL Conservation Plan Retention

The official signed copy of the plan is always retained in the case file.  All documents relating to HELC/WC shall be retained according to the schedule set forth in GM-120, Part 408.

E.  New Plan Document

A new plan prepared at the request of the person must be printed and signed when a revision occurs.

F.  Revised Plan Documents

A copy of the most recent plan revision, including the signature page, will be maintained in the case file.  Revised HEL conservation plan documents shall be—

(i)  Stored in the case file as the official plan

(ii)  Approved and signed by the person, the NRCS representative, and the Conservation District representative any time changes or corrections are made

G.  Disposition of Obsolete Plans

NRCS should archive these case files.  The HEL and wetland determinations that may have been made are permanent and remain with the land.  Other information collected about the tract could be useful in the future.

[M_180_NFSAM_512_B - Fifth Edition - November 2010]

Subpart C - Other Planning Considerations


512.20  Actions to Take in the Event of a Natural Disaster

A.  General

In situations where a significant area is affected by a natural disaster that has severe adverse effects upon the ability of persons to apply, use, or maintain conservation practices, the State Conservationist shall—

Provide general guidance to the potentially effected persons relative to HELC/WC.  In consultation with the State Technical Committee, develop guidance specific to the type of disaster including, but not limited to, any of the following:

·          Standards and specifications for alternative conservation practices to apply in lieu of the current system requirements (e.g., haying and grazing plans on CRP acreage).

·          Specific guidance relative to granting widespread variance for a weather-related disaster.

·          Operation and maintenance (O&M) guidance.

·          Identification of the conditions resulting from the natural disaster and the expected effect on existing or new conservation practices;

·          Specific actions expected to be taken regarding conservation practice repair, use, and maintenance to ensure that continued eligibility for USDA benefits will be maintained.

·          Practices for which variances will be granted where appropriate.  (See NFSAM, Part 518 or NFSAM Part 520.)

·          Specific actions that NRCS will take when conducting reviews and providing assistance.

B.  Public Information

NRCS shall provide guidance to the public and to USDA participants in a form and manner that will make it available to all persons who may have been affected by the natural disaster. 

512.21  Conservation Plan Operation and Maintenance

A.  Introduction

(1)  Once a practice is applied, HELC provisions require maintenance be performed so that the practice controls erosion as originally intended.  The functional life of a practice begins at the time of construction and ends when the practice fails to provide the benefits it was designed to provide.

(2)  Between the time the practice is originally constructed and when replacement of the practice is required, the practice may periodically require maintenance.  If the maintenance is such that the practice needs to be rebuilt, the practice must be rebuilt to FOTG standards and specifications.  The amount and type of maintenance required depends on a number of factors, including:  the condition and age of the practice, and/or the intensity and timing of storm events.

(3)  The FOTG lists the following:

(i)  Expected maintenance problems

(ii)  Likely maintenance needs for most practices

(iii)  Specific methods for proper O&M of some practices

 

B.  Policy

(1)  O&M—

(i)  Is required for all conservation practices included in a conservation plan or used in a conservation system regardless of their complexity.

(ii)  Is discussed with the producer during the planning process.

(2)  Job sheets or maintenance sheets may be included as part of the plan to explain maintenance requirement details.

(3)  Practice O&M requirements shall be included in the HEL conservation plan.  It is recommended that practices with complex O&M requirements be referenced to maintenance job sheets and/or practice-specific required O&M plans.

 

C.  Typical O&M Requirements

Typical O&M requirements include the following:

(i)  An annual O&M inspection.   Note:  NRCS may utilize an appropriate check list, if available.

(ii)  Repair of any significant damage to the structure and/or vegetation.

(iii)  Replacement of any failed practice components.

(iv)  Replacement of any settled or eroded fill areas.

(v)  Removal of any accumulated sediment from waterways, and so forth.

(vi)  Re-seeding of acreages as needed.

D.  Procedure for Notifying of O&M Needs

(1)  If conditions are found that indicate the practice needs maintenance and is not functioning as intended, or if the practice applied does not meet the specifications in the FOTG, the following policy shall apply:

Identify practice(s) deficiencies and maintenance needs.

Note:  The documentation should quantify amounts such as percent of waterway and terrace washouts, row grade of the planned and applied contour system, etc. 

(2)  Document the conservation practice repairs needed.

(3)  Within 10 days, notify the USDA participant in writing of the following:

(i)  Required corrective action must be completed in order to meet the FOTG and HELC requirements.

(ii)  NRCS assistance is available if needed.

(iii)  The tract/field will be placed on the following year’s compliance review list to ensure that the O&M item has been completed.

512.22  Updating HELC Records

A.  Responsibilities

(1)  Establishing, maintaining, and updating HELC records is the responsibility of the USDA participant and FSA. NRCS is not required to take action to update NRCS records until notified by the person of any changes requested. 

(2)  When NRCS is notified by the USDA participant of any requested changes, NRCS will provide technical assistance to develop and/or revise an HEL conservation plan or conservation system on a tract as workload permits [7 CFR Section 12.23(f)].

 

B.  Reconstitution

FSA reconstitutes a farm when there is a change in any of the following:

(i)  Ownership of a tract or a part of a tract

(ii)  Addition of land

(iii)  Sale of a part of the tract or farm

(iv)  Combination of all land ownership.

 

C.  FSA Notification of Person

FSA has agreed to notify new tract owners and operators of—

(i)  Existing HEL and wetland determinations made for the tract

(ii)  The current status of the conservation plan for the tract

(iii)  Their responsibility to contact NRCS regarding plan adoption or revision

D.  Information from FSA on Reconstituted Farms

FSA will report changes resulting from a reconstitution to NRCS by:

(i)  Data share, if available

(ii)  Form FSA–156EZ

(iii)  Aerial photocopies with previous tract and reconstituted tract information

E.  When to Update Plans

(1)  When the person signs a Form AD–1026, he/she—

(i)  Accepted the existing conservation plan or system

(ii)  Has accepted the treatment level designated in the plan

(iii)  Has agreed to apply a conservation system for the tract

(2)  The existing conservation plan or system stays in effect until the current operator or owner requests and prepares a revised conservation plan. 

(3)  Conservation plans and systems will not be revised without the concurrence of the person(s).

 

F.  When to Update HELC Records

Update the case file to reflect changes in conservation plans or systems requested by the producer or, if needed, changes resulting from a farm reconstitution.

[M_180_NFSAM_512_C - Fifth Edition - November 2010]

Part 514 - Wetland Determination and Labels

Subpart A – Wetland Determination and Delineation
    

    

514.0 Background

A. The Food Security Act of 1985, as amended, requires NRCS to delineate, determine, and certify wetlands located on land on a farm or ranch subject to wetland conservation (WC) provisions in order to establish a producer’s eligibility for certain USDA program benefits (16 U.S.C. Section 3822, 7 CFR Section 12.30).

B. This manual provides policy pertaining to the WC provisions. Policy concerning NRCS technical and financial assistance and the protection of wetlands is located in Title 190, General Manual (GM), Part 410, Subpart B, Section 410.26. In addition, wetlands may be subject to other Federal, State, or local regulations.

C. In carrying out the provisions of the Food Security Act, NRCS may request technical assistance from the U.S. Fish and Wildlife Service (FWS) and State or local conservation agencies (7 CFR Section 12.30). By statute, only NRCS may make certified wetland determinations (16 U.S.C. Section 3821(e)).

514.1 Certification

A. Certification of Wetland Determinations

(1) Certification of a wetland determination means that the wetland determination is of sufficient quality to make a determination of ineligibility for USDA program benefits. All wetland determinations made after July 3, 1996, are considered certified determinations (7 CFR Section 12.30(c)(1)). Determinations made prior to July 3, 1996, are considered certified if they met the procedural (appeal rights) and quality mandates as provided in 7 CFR Section 12, as detailed in paragraph B.

(2) Certified wetland determinations will be made under either of the following circumstances:

(i) In response to Farm Service Agency (FSA) Form AD-1026 or NRCS-CPA-038 completed by a USDA program participant for the field(s) identified

(ii) In response to Form FSA-569, if required

(3) To identify wetlands subject to the WC provisions, NRCS uses offsite (7 CFR Section 12.6(c)(5)) and onsite (7 CFR Section 12.6(c)(6)) methods. Site visits are conducted only in following circumstances:

(i) Before withholding any USDA benefits (7 CFR Section 12.30(c)(4))

(ii) When a USDA program participant requests an onsite determination (7 CFR Section 12.6(c)(7))

(iii) When there is an appeal (7 CFR Section 12.6(c)(6))

(iv) When a USDA program participant requests a preconversion minimal effect determination (7 CFR Section 12.31(d))

(v) In response to a Form FSA-569 or a whistleblower complaint (7 CFR Section 12.30(a)(6))

(vi) In conjunction with a compliance status review

(vii) If there is inadequate information to make determinations offsite (7 CFR Section 12.6(c)(6))

(4) Methods for offsite and onsite determinations are listed in the Food Security Act wetland identification procedures, located in the exhibit in section 514.8(A).

B. Evaluation of Previously Issued Wetland Determinations

Prior to conducting a certified wetland determination, NRCS will evaluate all previously issued determinations to determine their certification status using the criteria below:

(i) All wetland determinations made on or after July 3, 1996, are considered certified determinations (7 CFR Section 12.30(c)(1)) when all of the following apply:

The determination was issued to the participant as noted on the Form NRCS-CPA-026(e), "Highly Erodible Land and Wetland Conservation Determination." For the purpose of this guidance, the NRCS-CPA-026(e) and previous versions will be referred to solely as the NRCS-CPA-026.

The NRCS-CPA-026 was signed by NRCS.

The NRCS-CPA-026 is accompanied by a wetland determination map.

(ii) For certified determinations issued on or after July 3, 1996, nonwetland (NW) and not inventoried (NI) areas were required labels according to policy, and unlabeled areas (cropland or noncropland) may not be considered NW. Unlabeled areas on a certified determination issued on or after July 3, 1996, are subject to receiving a new wetland conservation label.

(iii) All wetland determinations made after November 28, 1990, and before July 3, 1996, are considered certified if all of the following apply:

The determination was issued to the participant as noted on the NRCS-CPA-026 or SCS-CPA-026.

The NRCS-CPA-026 or SCS-CPA-026 was signed by NRCS (formerly known as SCS). The SCS-CPA-026 (version dated June 1991 – see exhibit at section 514.8B and later versions of the NRCS-CPA-026 contain a valid producer notification statement in block 29 and appeal rights were provided on the back of the "Person Copy." If a different version of the SCS-CPA-026 was used (other than the June 1991 version) to issue the determination, there must also be evidence that the producer was informed the determination was certified and provided appeal rights.

The determination map document meets the quality mandate "of sufficient quality to make a determination of ineligibility for program benefits" (7 CFR Section 12.30(c)(1)). "Sufficient quality" means that the map document is legible to the extent that the location of designated wetlands in relation to other ground features can be determined. For example, the map document is of sufficient quality to be able to see reference ground features such as wooded areas, field boundaries, or roads, which then can be used as a reference for determining a wetland location.

(iv) In some cases, certified determinations issued on or after November 28, 1990, contain lands that were not labeled on the wetland determination map, but were recorded with a label on the associated NRCS-CPA-026, which indicated that the label applied to some numbered (or otherwise designated) land unit. Those land units are considered certified and are not subject to a new wetland conservation label.

(v) For certified wetland determinations issued prior to July 3, 1996, unlabeled cropland areas are considered NW and are not subject to a new wetland certification (unless cropland areas are marked "determination not made" or similar). For this purpose, cropland is considered nonrangeland or nonwoodland, which has a field polygon designated on the map with an associated field number.

(vi) Wetland determinations made prior to November 28, 1990, are not considered certified.

(vii) Regardless of the date the certified determination was issued, certain lands, within or associated with a certified determination, are subject to receiving a new (or revised in the case of NI) wetland conservation label, including—

Noncropland areas without a wetland conservation label. This would include areas having a designation that is not a wetland conservation label such as "NCL" (noncropland).

Areas marked as NI, "not determined," or similar designation.

Noncropland when the NRCS-CPA-026 or map contains an explanation indicating that the "determination covers only cropland," "noncropland areas are not certified," or other description that limits the extent of the area subject to the determination or certification.

Farmed wetland or farmed wetland pasture or hayland that is determined to meet abandonment criteria.

Areas that are determined to meet converted wetland, converted wetland + year, manipulated wetlands, artificial wetland, converted wetland technical error, third-party conversion exemption, COE permit with mitigation exemption, minimal effect, mitigated wetlands, converted wetland timely assistance, or converted wetland in-lieu fee criteria.

C. Completing Determinations on New Lands That are Associated With Previously Certified Areas

When completing a certified wetland determination for lands associated with previously certified areas, the extent of the new determination is limited to only those lands receiving a new (or revised in the case of NI) wetland conservation label.

(i) NRCS will offer applicable appeal rights and only record on the map and NRCS-CPA-026 the lands subject to a new or revised label.

(ii) Note in the cover letter appeal rights are being offered only for those lands receiving a new or revised label.

(iii) A copy of any previously certified wetland determination for the subject land should be provided to the participant but not added to the NRCS-CPA-026 or map with the new determination.

D. Situations When More Than One Certified Determination Has Been Issued for the Same Tract or Area of Land

When multiple certified determinations exist for the same tract or area of land, NRCS will recognize the most recent determination as being the certified determination. However, in the process of conducting an investigation of possible noncompliance, NRCS will evaluate potential noncompliance actions utilizing the certified determination in place at the time the potential noncompliance action occurred.

E. Requirements for Job Approval Authority

(1) Certified wetland determinations must be completed by a qualified NRCS employee, as determined by the State Conservationist. Qualified employees (i.e., agency experts) must meet all of the following criteria:

(i) Have completed all the required training, including update courses

(ii) Have the appropriate job approval authority

(iii) Have demonstrated proficiency in making certified wetland determinations

(2) State Conservationists are responsible for maintaining a roster of agency experts, by training and experience, who have demonstrated the knowledge and skills necessary to conduct wetland determinations and delineations, scope and effect evaluations, functional assessments, minimal effects evaluations, mitigation planning, and mitigation easements. The roster will be filed in section III of the Field Office Technical Guide, "Legislated Programs, Job Approval Authority."

(3) In accordance with part 518 of this manual, State Conservationists will carry out appropriate quality control reviews of certified wetland determinations.

F. Effective Period of Certifications

(1) All certified wetland determinations, conditions, and exemptions remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certification (16 U.S.C. Section 3822 (a)(4)).

(2) A person may request review of a final certified wetland determination only if a natural event alters the topography or hydrology of the subject land to the extent that the final certification is no longer a reliable indication of site conditions or if NRCS concurs with an affected person that an error exists in the current wetland determination (7 CFR Section 12.30(c)(6) and 16 U.S.C. Section 3822(a)(4)). A person must make all requests for review in writing, stating what the natural event was and to what extent that event altered the topography or hydrology, or, where NRCS error is cited as the reason for review, the participant must state what the error is and how it affects the final certified wetland determination validity.

G. Appeals of Certified Wetland Determinations

(1) Before finalizing a certified wetland determination, NRCS will notify the person affected by the certification and provide an opportunity to appeal it. NRCS will certify the wetland determination as final 30 days after providing the person notice of certification or, if an appeal is filed with USDA, after the administrative appeal procedures are exhausted or discontinued by the affected person (see Title 440, Conservation Program Manual (CPM), Part 510, for NRCS policies regarding appeals; NRCS appeal procedures are contained in 7 CFR Part 614). All requests for appeals, including those requests made at the preliminary technical determination stage, must be made in writing by the actual participants affected by the certified wetland determination.

(2) In the case of an appeal, NRCS must review and certify the accuracy of the determination for all lands subject to the appeal to ensure that it is accurate. Before a decision is rendered on the appeal, NRCS will conduct an onsite investigation of the subject land.

H. Preparing the Certified Wetland Determination and Delineation

(1) NRCS will delineate all wetlands subject to the WC provisions by outlining the boundaries of the wetland on aerial photography, digital imagery, or other graphic representation. If possible, NRCS will use the Global Positioning System (GPS) to digitally map the wetland boundary in the field and to import that data onto digital orthophotoquadrangle maps (DOQ) or other Geographic Information System (GIS) digital photographic imagery. Refer to part 514, subparts B through E, of this manual to determine the appropriate labels to apply to the delineated wetland types.

(2) The complete boundaries and size of all fields that were delineated and identified must be shown on the map, including areas identified as NW. The label and acreage information from the map will be used to prepare NRCS-CPA-026. A copy of the NRCS-CPA-026e, along with the delineation map, will be provided to the USDA program participant and FSA and retained in the participant’s NRCS case file.

I. Duration of Ineligibility

(1) Persons who plant an agricultural commodity on a nonexempt wetland converted between December 23, 1985, and November 28, 1990, are ineligible for USDA benefits for any year in which an agricultural commodity crop is planted or until the functions, values, and acreage of the converted wetland are mitigated (7 CFR Section 12.4(a)(2)).

(2) Persons who convert wetlands for the purpose of, or in such a way as to make the production of an agricultural commodity possible after November 28, 1990, remain ineligible for USDA benefits until the functions, values, and acreage of the converted wetland are mitigated (7 CFR Section 12.4(a)(3)). Ineligibility will remain with the person even if the person is no longer associated with the land. Subsequent owners and operators will not be in violation as long as the converted wetland is not planted to an agricultural commodity and the new owner or operator was not affiliated with the conversion action (7 CFR Section 12.4(g)).

(3) Exemption for Wetland Conversions Completed Before February 7, 2014

No person will be ineligible for Federal crop insurance premium subsidies for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. Sections 1501–1524) for—

Converting a wetland if the wetland conversion was completed, as determined by NRCS, before February 7, 2014.

Planting or producing an agricultural commodity on a converted wetland if wetland conversion was completed, as determined by NRCS, before February 7, 2014.

(4) There is an exemption for wetland conversion when a policy or plan of insurance is available to a person for the first time.

(i) When a policy or plan of insurance that provides coverage for an agricultural commodity is available to the person, including as a person who is a substantial beneficial interest holder, for the first time after February 7, 2014, as determined by the Risk Management Agency, ineligibility for Federal crop insurance premium subsidies for such policy or plan of insurance due to a wetland conversion violation will only apply to wetland conversions that are completed, as determined by NRCS, after the date the policy or plan of insurance first becomes available to the person.

(ii) The exemption—

Does not exempt or otherwise negate the person’s ineligibility for Federal crop insurance premium subsidies on any other policy or plan of insurance.

Applies only if the person takes steps necessary, as determined by NRCS, to mitigate all wetlands converted after February 7, 2014, in a timely manner, as determined by NRCS, but not to exceed 2 reinsurance years.

J. Coordination with the U.S. Army Corps of Engineers

Certified wetland determinations performed by NRCS are based on Food Security Act definitions, and may not be valid for USACE Clean Water Act (CWA) jurisdiction and permitting requirements. NRCS will include the following language in all wetland determinations provided to the USDA participant:

"This certified wetland determination/delineation has been conducted for the purpose of implementing the wetland conservation provisions of the Food Security Act of 1985. This determination/delineation may not be valid for identifying the extent of the USACE’s Clean Water Act jurisdiction for this site. If you intend to conduct any activity that constitutes a discharge of dredged or fill material into wetlands or other waters, you should request a jurisdictional determination from the local office of the USACE prior to starting the work."

514.2 Definitions

A. Agricultural Commodity.—An agricultural commodity is defined as any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane. (7 CFR Section 12.2)

B. Agricultural Use.—"Agricultural use" refers to land used for the production of food, fiber, or horticultural crops; used for haying or grazing; left idle in accordance with USDA program requirements; or diverted from crop production to an approved cultural practice that prevents erosion or other natural resource degradation.

C. For the Purpose of.—"For the purpose of" means actions completed that show intent to make production possible. Such actions need not actually make agricultural production possible.

D. Growing Season.—"Growing season" is the season of the year when climatic conditions are suitable for the growth and regeneration of plants.

E. Inundated.—"Inundated" means the ground is covered by water due to ponding, flowing, or flooded water.

F. Making Production Possible.—"Making production possible" means manipulation that—

(1) Allows or would allow production of an agricultural commodity where such production was not previously possible.

(2) Makes an area farmable more years than previously possible.

(3) Reduces crop stress and allows increased yields.

(4) After November 28, 1990, allows forage production or pasture and hayland use. On sites with woody vegetation, trees and stumps must be removed to constitute "making production possible."

G. Manipulation.—The alterations that are considered manipulation may result from dams, dikes, ditches, diversions, subsurface drains, pumps, terraces, or dredge and fill. These measures may alter hydrology even if installed offsite from the effected wetlands.

H. Normal Circumstances.—Refers to the soil and hydrologic conditions that are normally present, without regard to whether the vegetation has been removed. The premise for the concept of normal circumstances is that for many wetlands where the vegetation has been removed, the soil and hydrological characteristics remain to the extent that hydrophytic vegetation could return if vegetation management ceased. In the event that the vegetation on such land has been altered or removed, NRCS will determine if a prevalence of hydrophytic vegetation typically exists in the local area on the same hydric soil map unit under non-altered hydrologic conditions (7 CFR Section 12.31 (b)(2)(ii)).

I. Wetlands.—Lands that have all of the following characteristics:

(1) A predominance of hydric soils

(2) Are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions

(3) Under normal circumstances support a prevalence of hydrophytic vegetation

Note: Lands in Alaska identified as having a high potential for agricultural development and a predominance of permafrost soils are not considered wetlands for purposes of the Food Security Act (7 CFR Section 12.2).

J. Wetland Delineation.—Outlining the boundaries of a wetland determination on aerial photography, digital imagery, or other graphic representation or on the land (7 CFR Section 12.2).

K. Wetland Determination.—A technical decision regarding whether or not an area is a wetland, including identification of wetland type (label) and size (acres) of each label (7 CFR Section 12.2). Wetland determinations are recorded on Form NRCS-CPA-026e.

L. Wetland Inventories.—Maps that outline the location of potential wetlands and are usually developed using offsite remote sensing. Wetland inventories are not certified wetland determinations.

M. Wetland Mapping Conventions.—A set of approved procedures used to make wetland determinations and delineations on agricultural lands. Mapping conventions are developed cooperatively between USACE, the Environmental Protection Agency, the FWS, and NRCS for consistent use for CWA and FSA purposes, and are State-specific (7 CFR Section 12.6(c)(5)). See "Food Security Act Wetland Identification Procedures" in the exhibit in section 514.8A for additional wetland determination and delineation definitions.

514.3 Wetland Identification

Wetland Criteria

(1) Wetlands are identified through the confirmation of three diagnostic factors:

(i) A predominance of hydric soil

(ii) The prevalence of hydrophytic vegetation

(iii) Wetland hydrology

(2) Wetlands must meet the definition of all three wetland factors (soils, plants, and hydrology). The Food Security Act wetland identification procedures will be used to decide if a sampling unit meets the definition at the diagnostic factor level. These procedures are provided in the exhibit in section 514.8A.

514.4 Hydric Soils (7 CFR Section 12.31(a))

A. Hydric Soils Definition

Hydric soils are defined in the Food Security Act as soils that, in an undrained condition, are saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation (16 U.S.C. Section 3801(a)(12)).

B. Hydric Soils Lists

(1) Lists of hydric soils are compiled from the hydric soils criteria and are published in the National List of Hydric Soils, as well as in local lists of hydric soils mapping units developed by NRCS. Hydric soils lists are used in conjunction with NRCS soil surveys to predict the location and properties of hydric soils in a given county or similar area.

(2) In addition, an official list of local hydric soils is maintained in the Soil Data Mart (Welcome to the Soil Data Mart) and includes map unit components identified as probable hydric soils based on the hydric soils criteria. The National List of Hydric Soils is an aggregation of the local hydric soils lists produced from Soil Data Mart data.

(3) Methods for hydric soil determination are provided in the Food Security Act wetland identification procedures, located in the exhibit in section 514.8A.

514.5 Hydrophytic Vegetation (7 CFR Section 12.31(b))

A. Definition

(1) Hydrophytic vegetation is defined in the Food Security Act as a plant growing in—

(i) Water.

(ii) Substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content (16 U.S.C. Section 3801(a)(13)).

(2) Methods for hydrophytic vegetation determination are provided in the Food Security Act wetland identification procedures, located in the exhibit in section 514.8A.

B. Definition of Growing Season

The regulations (7 CFR Part 12) for the WC provisions do not define the growing season. The State Conservationist, with advice from the State Technical Committee, will approve a growing season definition for Food Security Act purposes based on either of the following:

(i) Wetlands Climate Table Documentation (i.e., "WETS" tables from the NRCS National Water and Climate Center; NRCS National Water and Climate Center - Climate Products - General Information - Wetlands Documentation) methods provided for in the USACE regional supplements.

(ii) Observation of above-ground biological growth in vascular plants as described in the USACE regional supplements.

514.6 Wetland Hydrology

Definition

(1) Wetland hydrology is defined as inundation or saturation by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions. (7 CFR Section 12.2)

(2) Methods for wetland hydrology determination are described in the wetland identification procedures in the exhibit in section 514.8.

514.7 Relationship of Labels to Wetland Determinations and Delineations

The determination of whether or not land is a wetland is based on a technical determination using the Food Security Act wetland identification procedures, as described in the exhibit in section 514.8A and is independent of the assignment of wetland labels. Labels are used to identify land subject to exemptions or restrictions under the Food Security Act. Such land may or may not meet the definition of wetland. Subparts B through E contain instructions for identifying and labeling wetlands to determine whether restrictions or exemptions apply to the land per the WC provisions of the Food Security Act.

514.8  Exhibits            

                A. Food Security Act Wetland Identification Procedures 

                 B. Form SCS-CPA-026, Person Copy (June 1991)

   


   

  
 

[M_180_NFSAM_514_A - Fifth Ed., Amend. 4, January 2017 - ]

Subpart B - Labels: Natural and Artificial Wetlands


514.10  Wetlands (W)

A.  Definition and Criteria

Areas assigned the Food Security Act label of Wetland (W) are areas that meet the criteria for the three wetland factors and typically have not been manipulated by altering hydrology and/or removing woody vegetation, including stumps.  Wetland includes areas that have been abandoned, as described in Section 514.33.  The wetland delineation tools described in the Appendix are used to assess the three wetland factors.  Wetland factors are described in Section 514.3. 

B.  Wetlands Farmed Under Natural Conditions

(1)  Wetlands may be planted to produce an agricultural commodity after December 23, 1985, without jeopardizing USDA benefits, as long as all of the following requirements are met:

(i)  Production is possible as a result of a natural condition, such as drought, or normal seasonal hydrologic conditions.

(ii)  Hydrology is not manipulated.

(iii)  Woody vegetation is not removed.

(iv)  Normal tillage does not fill, level, drain, or otherwise cause conversion of the wetland.  (7 CFR Section 12.5(b)(3))

(2)  Removal of herbaceous vegetation is not considered manipulation.  Grading, land-leveling, or land-clearing is considered manipulation.  Shearing stumps flush with the ground constitutes removal and, as it makes the site cropable, will result in conversion.

(3)  Destruction of herbaceous hydrophytic vegetation resulting from the production of an agricultural commodity is not considered altering or destroying a natural wetland characteristic if both of the following apply:

(i)  Such vegetation is able to return following cessation of the condition that made production of the agricultural commodity crop possible.

(ii)  The destruction was the result of crop production activities that are common in the area.

(4)  Removal of woody vegetation is not considered farming under natural conditions, even if this practice is temporarily enhanced by drought or other natural conditions, since such removal would destroy natural wetland characteristics for an extended period of time.

(5)  Where hydric soils have been used for production of an agricultural commodity, and the effect of the drainage or other altering activity is not clearly discernible, NRCS will compare the site with other sites containing the same hydric soils in a natural condition to determine if the hydric soils can or cannot be used to produce an agricultural commodity under natural conditions. If the soil on the comparison site could not produce an agricultural commodity under natural conditions, the subject wetland will be considered to be converted wetland.  (7 CFR Section 12.32(a)(1))

C.  Restrictions

(1)  Any manipulation to wetlands that results in a conversion (an activity that is for the purpose, or makes possible production of an agricultural commodity) may result in non-compliance with the WC provisions.  Activities that do not constitute conversion under the Act may be controlled by other Federal, State, or local regulations.   

(2)  Drainage structures that were constructed through a wetland (W) before December 23, 1985, which have been maintained by the participant, and which serve as an outlet for drainage systems of Prior Converted Cropland (PC), Farmed Wetland (FW), or Farmed Wetland Pasture and Hayland (FWP) may be maintained to the extent of the scope and effect of the drainage as it existed on December 23, 1985, but may not be expanded, increased, or improved.  These include structures operated and maintained as drainage outlets.  See Part 516, Subpart B, Scope and Effect Determination, for policy and procedures to use in calculating the scope and effect of the original drainage.

(3)  Participants should be advised to avoid impacts to wetlands during drainage maintenance activities.  If drainage maintenance converts a wetland in violation of the WC provisions, the participant may need to restore the wetland or mitigate the loss of wetland acres and functions in order to remain eligible for USDA program benefits.  (See NFSAM Part 515, Subpart B, Mitigation Exemption.)

(4)  In cases where the original scope and effect is in question, documentation of the following may be of value:

(i)  Any existing wetland easements.

(ii)  Evaluation of the drainage system as it currently exists, with sufficient detail to evaluate factors affecting drainage of PC, FW, or FWP.

(iii)  The scope and effect of the drainage system that existed on December 23, 1985.

(iv)  Proposed drainage system maintenance activities, including structures and designs.

(v)  Proposed dates of implementation and completion.

(5)  Cropping and mechanical harvesting of hay within the wetlands affected by maintenance will be allowed to the extent that it was possible to conduct those activities prior to the maintenance of drainage capacity.  Placement in the wetland of excavated material associated with the maintenance activities may constitute a conversion under the Act. 

(6)  Wetlands manipulated beyond the scope and effect of the drainage as it existed on December 23, 1985, will be labeled Converted Wetlands (CW or CW+year) or Manipulated Wetlands (WX).  Other pre-existing wetland labels will remain as previously determined.

514.11  Manipulated Wetlands (WX)

A.  Definition 

(1)  Wetlands that have been manipulated as described in Section 514.10 beyond the scope of allowable maintenance will be labeled as Manipulated Wetlands (WX) if both of the following conditions are met:

(i)  The manipulation was not for the purpose of producing an agricultural commodity (See agricultural commodity definition NFSAM Part 514, Section 514.2 (A)).

(ii)  The manipulation did not make production of an agricultural commodity possible. 

(2)  Manipulated wetlands may or may not meet wetland criteria, depending on the type and degree of manipulation.  If production is later made possible or an agricultural commodity crop is produced on the manipulated wetland, the area will be labeled a converted wetland (CW or CW+year).  Open water areas excavated in wetlands will be labeled WX unless the excavation results in conversion that makes possible production of an agricultural commodity.  In this case, the converted areas would be labeled CW or CW+year. 

(3)  Wetlands manipulated for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction where production of an agricultural commodity has not been made possible are labeled WX (7 CFR Section 12.5(b)(1)(iv)).  The intended use of the manipulated area will not be agricultural commodity production.

(4)  At times, annual cover crops are utilized in orchards, vineyards, blueberry patches, and other nonagricultural commodity crop fields.  In these cases, even though the production of an agricultural commodity is possible, the cover crop must be destroyed by mechanical or chemical means before seed heads develop.  If in any crop year, an annually tilled cover crop matures because it is not destroyed, or is harvested, the manipulated area will be labeled CW+year.  The use of nonagricultural cover crops, such as clover or other biennials, is also allowed. 

(5)  NRCS employees are encouraged to assist persons in planning agriculturally-related activities under this exemption (e.g., items 1 through 8 in Section 514.11(B), below).  Policy concerning USDA technical and financial assistance and the protection of wetlands is located in GM-190, Part 410, Subpart B, Related Environment Concerns, Section 410.26

B.  Examples of WX

Examples of activities that result in WX include, but are not limited to:

(i)  An open ditch is constructed through a forested wetland that removes the hydrology, but the trees are not removed and the manipulation does not make production possible.

(ii)  Piles of trees, stumps, and soil cover an area, but the area cannot be cropped without additional land-clearing activities.

(iii)  Construction of roads, buildings, or other activities that do not make production possible.

(iv)  Construction of stock watering or irrigation ponds.

(v)  Conversion for orchards, groves, or vineyards.

(vi)  Spring development.

(vii)  Construction of agricultural waste management structures.

(viii)  A non-perforated subsurface drain is constructed through a forested wetland that requires limited stump removal for installation and the manipulation does not make production of an agricultural commodity possible.

C.  Procedures for Identifying WX

Use the following procedures to identify WX:

STEP

ACTION

1

Use appropriate wetland delineation tools, as described in the Appendix, to assess site conditions. A wetland factor may be altered or removed as a result of manipulation.

2

Review aerial photographs or FSA slides to check for land use changes that may indicate wetland manipulation or conversion.

3

The area qualifies for a WX exemption if manipulation was not for the purpose of producing a commodity crop or was such that production was not made possible.

D.  Maintenance

WX can be maintained but not for the purpose of, or making possible production of, an agricultural commodity.  To ensure compliance, a participant can complete Form AD-1026, Highly Erodible Land and Wetland Conservation Certification, before conducting any hydrologic manipulation to ensure that the proposed manipulation is not for the purpose of, and does not make production of, an agricultural commodity possible on the WX or another wetland. 

514.12  Artificial Wetland (AW)

A.  Definition

(1)  An artificial wetland (AW) is land that was formerly non-wetland under natural conditions but now exhibits wetland characteristics because of the influence of human activities. (7 CFR Section 12.2)  These areas are exempt from the WC provisions of the Act and thus can be drained, removed, or otherwise manipulated without causing ineligibility for USDA program benefits.

(2)  Examples of AW include the following:

(i)  A wetland created incidentally by an irrigation delivery system or other adjacent human activity on an area that was formerly upland.

(ii)  Ponds constructed in non-wetlands (NW).  These may be labeled as AW even if all or part of these areas may be too deep to allow wetland vegetation to grow (i.e., they do not meet the hydrophytic vegetation criteria).  If a pond was constructed wholly or partially in wetlands, the portion of the pond that was constructed in wetlands is not AW.  These areas shall be labeled WX if agricultural production is not possible.

(3)  Increasing the hydrology on an existing wetland does not make the wetland an AW.  Such an area would remain wetland unless the hydroperiod is increased to the point where wetland vegetation cannot survive, in which case it would be labeled WX. 

B.  Procedure

Appropriate wetland delineation tools are used, as described in the Appendix, to assess wetland criteria.

[M_180_NFSAM_514_B - Fifth Edition - November 2010]

Subpart C - Labels: Non-Wetlands


514.20  Non-Wetlands (NW)

A.  Definition

(1)  Non-wetland (NW) is land that under normal conditions does not meet wetland criteria.

(2)  NW also includes wetlands that were converted to the extent that wetland criteria were not present on December 23, 1985, but an agricultural commodity was not produced.  For these NW areas, the wetland criteria have not returned and the area has not been abandoned.

(3)  Deepwater habitat, which does not meet wetland criteria, may be labeled NW if it is necessary to make a determination of eligibility for these areas. 

(4)  In addition to NWs, “other waters of the U.S.” as defined in Section 404 of the Clean Water Act, may occur on a tract.  Other waters include streams, lakes, ponds, rivers, and ditches that are not wetlands as defined in the Act.

(5)  Other waters are not subject to the WC provisions and are not labeled as such on certified wetland determinations.  They may be labeled NW.

B.  Procedure for Identifying NWs

Appropriate wetland delineation tools are used, as described in the Appendix, to assess wetland criteria. 

[M_180_NFSAM_514_C - Fifth Edition - November 2010]

Subpart D - Labels: Wetlands Converted to Agricultural Use Before December 23, 1985


514.30  Prior Converted Cropland (PC)

A.  Definition

(1)  Prior converted cropland (PC) is a converted wetland where the conversion occurred before December 23, 1985; an agricultural commodity had been produced at least once before December 23, 1985; and as of December 23, 1985, the area was capable of producing an agricultural commodity (i.e., did not support woody vegetation and was sufficiently drained to support production of an agricultural commodity).  The conversion could include draining, dredging, filling, leveling, or otherwise manipulating (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) the wetland area.  In addition, PC meets the following hydrologic criteria:

(i)  If the area is not a pothole, playa, or pocosin, inundation is less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years (50 percent chance or more). 

(ii)  If the area is a pothole, playa, or pocosin, inundation is less than 7 consecutive days and saturation is less than 14 consecutive days during the growing season in most years (50 percent chance or more).

Note:  Reference (7 CFR Section 12.2

(2)  The presence and extent of pothole, playa, and pocosin wetlands in each State will be determined by the State Conservationist with advice from the State Technical Committee.

B.  Supporting Documentation

(1)  The NRCS Engineering Field Handbook (EFH), Chapter 19, “Hydrology Tools for Wetland Determination;” the 1987 COE Manual; and the approved State mapping conventions are used to determine if the area is inundated for the requisite time.  Site conditions must be thoroughly documented, using information such as:

(i)  Aerial photographs and FSA slides.

(ii)  Flood frequency studies.

(iii)  Interviews with the person and other knowledgeable residents of the area.

(iv)  Field indicators of surface water such as water marks, drift lines, and drowned or stressed crops.

(v)  Stream gauge data.

(2)  FSA records may be used to determine current or prior cropping history.  In the absence of FSA records, any determination of cropping history should be based on aerial photography, crop expense or receipt records, grain elevator records specific to tract and field, or other suitable documentation that can be tied to the specific field and/or tract under review.

C.  Drainage Maintenance and Improvement

Drainage systems or other hydrologic manipulations on PCs may be maintained or improved after December 23, 1985, without loss of eligibility for USDA program benefits.  USDA program participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.

D.  Procedures for Identifying PCs

Aerial photographs, crop records, and other resources are consulted to determine if the area―   

(i)  Has hydric soils.

(ii)  Was converted for production of an agricultural commodity before December 23, 1985.

(iii)  Was capable of producing an agricultural commodity (i.e., did not support woody vegetation and was sufficiently drained to support production of an agricultural commodity) as of December 23, 1985.

(iv)  Fails to meet hydrologic criterion of Farmed Wetland (FW).

514.31  Farmed Wetlands (FW)

A.  Definition

(1)  FWs are wetlands that were drained, dredged, filled, leveled, or otherwise manipulated and used for producing an agricultural commodity before December 23, 1985, and that meet all of the following criteria:

(i)  If the area is not a pothole, playa or pocosin, it is inundated for at least 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years (50 percent chance or more).

(ii)  If the area is a pothole, playa, or pocosin, it is inundated for at least 7 consecutive days or saturated for at least 14 consecutive days during the growing season in most years (50 percent chance or more).

(iii)  Production was made possible or enhanced by the manipulation.

(iv)  The area has not been abandoned (Section 514.33).

Note:  Reference ( 7 CFR Section 12.2

(2)  The presence and extent of pothole, playa, and pocosin wetlands in each State will be determined by the State Conservationist with advice from the State Technical Committee.

B.  Supporting Documentation

(1)  EFH, Chapter 19, “Hydrology Tools for Wetland Determination;” the 1987 COE Manual; and the approved State mapping conventions are used to determine if the area is inundated for the requisite time.  Site conditions must be thoroughly documented, using information such as:

(i)  Aerial photographs and FSA slides.

(ii)  Flood frequency studies.

(iii)  Interviews with the person and other knowledgeable residents of the area.

(iv)  Field indicators of surface water such as water marks, drift lines, and drowned or stressed crops.

(v)  Stream gauge data.

(2)  FSA records may be used to determine current or prior cropping history.  In the absence of FSA records, any determination of cropping history should be based on aerial photography, crop expense or receipt records, grain elevator records specific to tract and field, or other suitable documentation that can be tied to the specific field and/or tract under review.

C.  Drainage Maintenance and Improvement

(1)  FWs may be maintained and used to produce agricultural commodities or other crops without a loss of eligibility for USDA program benefits.  However, any additional hydrologic manipulation after December 23, 1985, that does not meet the definition of maintenance (Section 516.10) may result in non-compliance of the WC provisions.  ( 7 CFR Section 12.32(b) )  USDA program participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.

(2)  If a participant wants to restore wetland characteristics to FW areas and, at the same time, prevent the areas from being considered abandoned, the participant must document hydrologic and vegetative baseline conditions with NRCS before restoring wetland characteristics.  (7 CFR Section 12.5(b)(1)(iii)).

D.  Procedures for Identifying FW

(1)  Aerial photographs, crop records, and other resources must be consulted to determine if the area―

(i)  Has hydric soils.

(ii)  Was converted for production of an agricultural commodity prior to December 23, 1985, and an agricultural commodity was produced at least one year before December 23, 1985.

(iii)  Was capable of production of a commodity crop as of December 23, 1985.

(iv)  As of December 23, 1985, met the hydrologic criterion of FW.

(v)  Was not abandoned after December 23, 1985.

(vi)  Did not meet the converted wetland criteria (manipulated since December 23, 1985, beyond the scope and effect of any prior manipulation).

(2)  If the FW site meets abandonment criteria, without the abandonment being part of an approved plan (documented baseline conditions), the area should be labeled W unless other manipulation has occurred to the extent that it is a converted wetland. 

514.32  Farmed Wetland Pasture or Hayland (FWP)

A.  Definition

A farmed wetland pasture or hayland (FWP) is a wetland that was drained, dredged, filled, leveled, or otherwise manipulated and used for pasture or hayland (includes native pasture or hayland) as of December 23, 1985, and meets both of the following criteria:

(i)  The area is inundated for at least 7 consecutive days during the growing season or saturated for at least 14 consecutive days during the growing season in most years (50 percent chance or more); and

(ii)  The area has not been abandoned (Section 514.33).

Note:  Reference (7 CFR Section 12.2)

B.  Supporting Documentation

EFH, Chapter 19, “Hydrology Tools for Wetland Determination;” the 1987 COE Manual; and the approved State mapping conventions are used to determine if the area is inundated for the requisite time.  Site conditions must be thoroughly documented, using information such as:

(i)  Aerial photographs and FSA slides.

(ii)  Flood frequency studies.

(iii)  Interviews with the person and other knowledgeable residents of the area.

(iv)  Field indicators of surface water such as water marks, drift lines, and drowned or stressed crops.

(v)  Stream gauge data.

C.  Maintenance

(1)  FWP can be maintained and used to produce forage crops or other crops without loss of eligibility for USDA benefits.  However, additional hydrologic manipulation after December 23, 1985, that does not meet the definition of maintenance (Section 516.10) may result in non-compliance with the WC provisions.  (7 CFR Section 12.32(b)) USDA program participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.

(2)  If a participant wants to restore wetland characteristics to FWP areas and, at the same time, prevent the areas from being considered abandoned, the participant must document hydrologic and vegetative baseline conditions with NRCS before restoring wetland characteristics.  (7 CFR Section 12.5(b)(1)(iii))

D.  Procedures for Identifying FWP

(1)  Aerial photographs, crop records, and other resources are consulted to determine if the area―

(i)  Has hydric soils.

(ii)  Was converted for production of a pasture and/or hayland use prior to December 23, 1985.

(iii)  Had not produced an agricultural commodity at least one year before December 23, 1985.

(iv)  As of December 23, 1985, met the hydrologic criterion of FWP.

(v)  Was not abandoned after December 23, 1985. 

(vi)  Did not meet the converted wetland criterion (manipulated since December 23, 1985, beyond the scope and effect of any prior manipulation).

(2)  If the FWP site meets abandonment criteria, without the abandonment being part of an approved plan (documented baseline conditions), the area should be labeled W unless other manipulation has occurred to the extent that it is a converted wetland. 

514.33  Abandonment

A.  Description

(1)  Abandonment is the cessation for five consecutive years of management or maintenance operations related to the production of agricultural commodities or forage on areas labeled FW or FWP.  (7 CFR Section 12.33)  FW and FWP areas that are determined to be abandoned will be labeled W.  An area will not be considered abandoned when either of the following occurs:

(i)  It is enrolled in a conservation set-aside program or a State or Federal wetland restoration program, other than USDA perpetual easements such as the Wetland Reserve Program (WRP).  Hydrologic and vegetative baseline conditions and restoration activities must be documented before the site is enrolled.  Restoration is defined in Section 515.10.

(ii)  NRCS documented hydrologic and vegetative baseline conditions and restoration activities before active maintenance and management ceased.  A certified wetland determination conducted by NRCS can be used to verify baseline conditions.  Documentation of baseline conditions should include a scope and effect determination of drainage systems to help ensure that the landowner returns the wetland to the water regime that existed before the wetland restoration.  See Part 516 for more information.

(2)  PC land will not be considered abandoned under the Food Security Act. (7 CFR Section 12.33 (c)

(3)  Areas labeled CW or CW+year are not subject to abandonment.  If restored/mitigated on-site, CW and CW+year areas will revert to the label that applied before the conversion.

(4)  This definition of abandonment is applicable only for compliance with the Food Security Act.  Regulations governing the Clean Water Act may provide different or additional criteria for abandonment, particularly with regard to PC areas.  Participants who are planning to abandon PC areas should be advised to discuss their plans with the COE before proceeding. 

B.  Determination of Abandonment for FW and FWP

(1)  Areas labeled FW – In order to demonstrate that the area has not been abandoned, the participant must be able to document that the site has been maintained such that an annually tilled crop can be produced on it and that drainage structures have been maintained to function at or near their as-built capacity.  See Scope and Effect procedures in Part 516. 

(2)  Areas labeled FWP – In order to demonstrate that the area has not been abandoned, all drainage structures must be maintained to function at or near their as-built capacity, and the participant must have controlled woody vegetation. 

(3)  When making a determination of abandonment, the following types of records can be used:

(i)  Commodity crop production records, for FW.

(ii)  Aerial photographs, including color slides and color infrared photography, to determine the status of hydrology manipulations and cropping.

(iii)  Drainage district or other drainage records to assess maintenance of drainage structures.

C.  Manipulation on Land Considered Abandoned

(1)  Drainage systems may not be reinstalled or maintained if the land has been abandoned and wetland criteria are met.  Such land will be identified as W and any maintenance or manipulation of existing systems that results in conversion will cause the area to be labeled CW or CW+year.

(2)  Maintenance of drainage outlets for PC, FW, or FWP through the area considered abandoned is allowed, as described in Section 514.10(C).

[M_180_NFSAM_514_D - Fifth Edition - November 2010]

Subpart E - Labels: Wetlands Converted After December 23, 1985


514.40  Converted Wetlands (CW or CW+Year)

A.  Definition

(1)  A converted wetland is an area that was formerly wetland (e.g., W, FW, FWP, WX) and meets both of the following criteria:

(i)  After December 23, 1985, has been drained, dredged, filled, leveled, or otherwise manipulated (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) for the purpose, or to have the effect of making the production of, an agricultural commodity possible. 

(ii)  Such production would not have been possible but for such action.

Note:  Reference (7 CFR Section 12.2)

(2)  For the purpose of the Food Security Act, the term “conversion” constitutes activities that have the purpose or effect of making production of an agricultural commodity possible or of increasing production.  Wetlands that have been manipulated but that do not meet this requirement would be labeled WX.

(3)  Wetland conversion activities will be assessed to determine if any exemptions to the Act apply to the conversion.

B.  Examples of Manipulation That Convert Wetlands

This table provides examples of manipulations that are considered conversion if conducted to make agricultural commodity production possible.

Type

Actions that may Cause Conversion of Wetlands

New Construction, grading, land leveling

Construction of open ditches or subsurface drains into or outlets through wetlands.  New construction of a diversion that decreases flow of water to a wetland.

Construction of dugouts, or other ponds, dikes, etc., in wetlands resulting in fill being placed in a wetland, or that impact wetland hydrology.

Removal of micro-topographic features and deep ripping to remove restrictive layers.

Woody Vegetation Removal

Woody vegetation, including stumps, removed after December 23, 1985, if for the purpose of, or to made production of an agricultural commodity possible.

Hydrologic Manipulation

Any manipulation of the hydrology by means of on-site or offsite activities that exceed the original scope and effect of hydrologic manipulations that occurred before December 23, 1985.  For FW, this includes manipulating the hydrology such that production is made more possible (increased yields, increased frequency of cropping, increased diversity of crops). 

C.  Examples of Manipulation That Are Not Considered Conversion

This table contains examples of actions not considered manipulation and manipulation that is not considered conversion. 

Type

Action not Considered Manipulation

Manipulation not Considered Conversion

Woody Vegetation Removal

Removal of woody vegetation without removal of stumps, such that the area cannot be cropped.

·   Removal of woody vegetation, including stumps, from an area so small that production on the area is not possible, such as clearing a fence line in a manner that will not permit the use of normal farming equipment on the cleared area.

·    Removal of seedlings (5 years or less of growth) by mowing or normal plowing.  

Herbaceous Vegetation Removal

Removal of herbaceous vegetation. 

 

Tillage

Normal tillage practices and operations with tillage equipment accepted as normal in the local area.  Tilling does not include redistribution of surface material in a manner that converts wetland areas, mechanized land-clearing, or deep ripping in wetland areas.

 

D.  Date of Conversion

(1)  When the Act was signed in 1985, it stated that persons shall be ineligible for USDA benefits if an agricultural commodity is planted on wetland that was converted after December 23, 1985.  (7 CFR Section 12.4(a)(2)

(2)  Revisions to the Act in 1990 stated that persons shall be ineligible for USDA benefits if they convert wetlands after November 28, 1990, to the extent that production of an agricultural commodity is possible.  (7 CFR Section12.4(a)(3))  For this reason, NRCS must determine whether a wetland was converted before or after November 28, 1990.  Non-exempted conversions made after December 23, 1985, but before November 28, 1990, will be labeled CW.  Non-exempted conversions made after November 28, 1990, will be labeled CW+year (the year the conversion occurred).

(3)  An area will also be labeled CW if the conversion occurred after December 23, 1985, and is the result of activity by a county, drainage district, or similar entity.  (Section 514.42(C)).  Production of agricultural commodities or forage for mechanical harvest or additional manipulation on these areas will result in ineligibility for USDA programs.

E.  Maintenance on CW and CW+year

Manipulation that was performed between December 23, 1985, and November 28, 1990, that caused an area to become a CW may be maintained to the scope and effect of the original manipulation.  Subsequent manipulation that exceeds the original scope and effect will cause the affected area to become a CW+year under the Act, and the person may be ineligible for USDA benefits unless an exemption applies.  Production of an agricultural commodity on the CW will also result in ineligibility for USDA program benefits for that crop year. 

F.  Labeling Converted Wetlands that are restored

If a converted wetland is restored on-site by a participant in accordance with a restoration/mitigation plan approved by NRCS, the area will revert to the label that applied before the conversion.

G.  Procedures for Identifying Converted Wetlands

The following table shall be used to identify CW or CW+Year:

STEP

ACTION

1

Appropriate wetland delineation tools are used as described in the Appendix to assess wetland criteria.

2

The1985, 1990, and/or other appropriate year aerial photographs or FSA slides are reviewed to confirm date of potential wetland conversion.  FSA receipts or other records may also be used to help determine the date.  For wetlands converted between December 23, 1985, and November 28, 1990, it is generally not essential to know the exact crop year of conversion.  For wetlands converted after November 28, 1990, the crop year must be determined using the best available data.  This information is provided to FSA to determine the years the person may be ineligible for USDA program benefits.

H.  Conservation Practices on HEL and NHEL

(1)  Wetlands converted as a result of installation of required water erosion control practices on HEL lands will not be considered converted wetlands.  Alternatives that avoid or minimize impacts to wetlands will be recommended to the person and utilized whenever possible.  These areas will keep the W label.

(2)  If a wetland will be affected by a water erosion control practice on NHEL, the NRCS representative will follow minimal effect determination procedures (NFSAM Part 515). Water conservation measures are not included with water erosion control practices for this provision; thus, a water conservation measure that diverts water from a specific wetland may result in a CW+year designation unless exempted by a minimal effect determination.

514.41  Converted Wetland Technical Error (CWTE)

A.  Definition

(1)  Converted wetland technical error (CWTE) occurs if NRCS makes a wetland determination that is incorrect and results in a person taking action that would place this person in non-compliance with WC provisions.  (7 CFR Section 12.5 (b)(6))  Failure of NRCS to make a determination does not constitute a CWTE.  CWTE cannot be used to exempt the person from actions taken while waiting for NRCS to respond to Form AD-1026.

(2)  The erroneous information from NRCS must meet each of the following criteria:

(i)  Be documented on Forms NRCS-CPA-026 or NRCS-CPA-026e.

(ii)  Have preceded the action.

(iii)  Have been directly relied upon by the person in the decision to take the action.

(3)  A CWTE can be approved only at the State level.

B.  Exception – Obvious Wetlands

CWTE does not apply to obvious wetlands.  An obvious wetland is an area that is continuously inundated or saturated for long periods of time during the growing season to such an extent that access by foot to make a determination of predominance of hydric soils or prevalence of hydrophytic vegetation is not feasible.  (7 CFR Section 12.6 (c)(8))  Additionally, wetland sites that are cropped or have had forage harvested by mechanical means less than 5 out of 10 years because of ponding, flooding, or saturation are obvious wetlands.

C.  Supporting Documentation

Documentation for the CWTE must include each of the following:

(i)  Form AD-1026 showing the person’s intent.

(ii)  Corresponding Forms CPA-026 or CPA-026e, including on-site documentation sheets.

(iii)  Date conversion was started.

(iv)  Date conversion was completed. 

(v)  Explanation of the events and circumstances leading to the error.

D.  Use and Maintenance

USDA program participants may produce an agricultural commodity on a CWTE.  Drainage systems and other hydrologic manipulations can be maintained.  However, additional manipulation after the effective date of the CWTE may result in the area being labeled CW+year.  Scope and effect of hydrologic manipulation should accompany a CWTE label.

E.  Procedures for Identifying a CWTE

The following table shall be used to identify a CWTE:

STEP

ACTION

1

Appropriate wetland delineation tools are used as described in the Appendix to assess wetland criteria. 

2

The 1985, 1990, and/or other appropriate year aerial photographs or FSA slides are reviewed to confirm date of potential wetland conversion.  FSA receipts or other records may also be used to help determine the date.  Review CPA-026e and data furnished by participant. 

3

The data is submitted to the State Conservationist for CWTE consideration.

514.42  Third-Party Conversion Exemption (TP)

A.  Background

(1)  A person shall not be determined to be ineligible for program benefits for production of an agricultural commodity on wetland converted after December 23, 1985, if such conversion was not the result of a scheme or device to avoid compliance and either of the following:

(i)  The wetland is converted by actions of persons unassociated or unaffiliated with the USDA program participant, or any of the person’s predecessor in interest, such as a prior landowner.

(ii)  The wetland conversion is an indirect effect of an action occurring off the tract whose purpose is other than to convert that particular wetland, such as drainage on an adjacent property, by a person other than the participant.

Note:  Reference (7 CFR Section 12.5(b)(1)(vii)(D))

(2)  FSA is responsible for determining whether the party who converts a wetland is a third party.  (7 CFR Section 12.6(b)(3)(vii))

(3)  FSA will notify NRCS when a third-party exemption is approved.  NRCS will label the converted wetland TP.  The third party will be ineligible to receive USDA benefits unless the wetland functions and values are mitigated.

B.  Use of Wetlands Converted by Third Party and Eligibility of TP

Further drainage improvement on such land is not permitted without loss of eligibility for USDA program benefits unless NRCS determines that further drainage activities applied to that land would have minimal effect on the wetland functions and values in the area.  (7 CFR Section 12.5(b)(1)(vii)(D))

C.  Conversions by Drainage Districts or Similar Entities

The regulations (7 CFR Section 12.5(b)(1)(vii)(D)) specify that activities of an entity of local government, such as a water resource district, drainage district, or local road authorities, will be attributed to all persons within the jurisdiction of the district or other entity who are assessed for the activities of the district or entity.  Accordingly, where a person’s wetland is converted due to the actions of the district or entity, the person shall be considered to have caused or permitted the drainage.  However, the activities of a drainage district or other entity will not be attributed to a person to the extent that the activities of the district or entity were beyond the control of the person, and the wetland converted is not used by the person for the production of an agricultural commodity or a forage crop for harvest by mechanical means.  Wetlands converted by a drainage district or similar entity will be labeled CW.

[M_180_NFSAM_514_E - Fifth Edition - November 2010]

Subpart F - Labels: Prior Manuals


514.50  Background

Previous editions of the National Food Security Act Manual contained labels that will not be used for certified determinations completed after the effective date of this manual.  These labels may be shown for previous determinations and maintained in the Customer Service Toolkit. 

514.51  Commenced Conversion (CC)

A.  Definition

A Commenced Conversion (CC) wetland is a wetland, farmed wetland, farmed wetland pasture, or a converted wetland on which conversion began but was not completed before December 23, 1985.  (7 CFR Section 12.20)  A commenced conversion determination allows persons who had expended or legally committed substantial funds for the primary and direct purpose of converting wetlands before December 23, 1985, to complete the conversion without jeopardizing USDA program benefits.

B.  Criteria

(1)  A CC exemption may be granted by FSA where conversion began but was not completed before December 23, 1985, if the person filed an ASCS-492 with FSA before September 19, 1988, and either of the following applies:

(i)  Began construction activities before December 23, 1985, that would convert the wetland. 

(ii)  Expended or legally committed substantial funds before December 23, 1985, for the primary and direct purpose of converting the wetland.

(2)  To be eligible for a CC determination, the person must have pursued completion of the conversion on a regular basis since initiation of the conversion project, except for delays because of circumstances beyond the person’s control.  The CC exemption will be lost if the conversion is not completed by January 1, 1995, unless there are justifiable circumstances.  Land on which such conversion activities were not completed by January 1, 1995, shall be evaluated by the same standards and qualify for the same exemptions as wetlands or farmed wetlands, as applicable.  The CC exemption only applies to the conversion of those wetlands for which construction was begun or materials and supplies purchased.

C.  Use and Maintenance

Participants may produce an agricultural commodity on areas labeled CC.  Drainage systems and other hydrologic manipulations can be maintained.  

514.52  Converted Wetland for Non-Agricultural Purposes (CWNA)

Definition

A “converted wetland for non-agricultural purposes” (CWNA) label was utilized in previous editions to denote areas of wetlands that were converted after November 28, 1990, that would not be in violation of WC provisions if the conversion activities were for purposes other than for making agricultural production possible.

514.53  Not Inventoried (NI)

Definition

The “not inventoried” (NI) label was utilized in previous editions to denote areas on a tract on which a certified determination had not been completed.

[M_180_NFSAM_514_F - Fifth Edition - November 2010]

Subpart G - Authorized Activities for Wetland Compliance


514.60  Uses and Maintenance

A.  The following table provides a summary of the wetland types, labels, criteria, authorized uses, and authorized maintenance activities for compliance with the WC provisions of the Act.

B.  When a certified wetland determination is conducted, NRCS will apply the criteria provided in this part and label the area accordingly.  This will update the previous label, if there is one.  If there is no change in a given label, updating the label will not affect a participant’s eligibility under the Act, because the criteria for identifying wetlands and exemptions have not changed.  Labels will not be updated on areas for which a certified determination is not required. 

Note:  The paragraph reference should be used to locate additional information on the wetlands identified in this table.

Name and Label

Criteria For Determination

Authorized Uses

Authorized Maintenance

Paragraph Reference

(AW)

Artificial Wetland

Created wetlands on areas that were previously non-wetland.

No restrictions.

No restrictions.

Section 514.12

(CC)

Commenced Conversion

Conversion began before December 23, 1985, and was approved by FSA; conversion activity was completed by January 1, 1995.

No restrictions provided activities were completed per conditions.

As stipulated in the agreement.

Section 514.51

(CPD)

COE Permit w/ Mitigation

Converted wetland is exempt because the activity is authorized by a COE permit and satisfies the mitigation requirements of the Act.

Per COE permit conditions.

Per COE permit conditions.

Section 515.20

(CW) Converted Wetland

Converted after December 23, 1985, and prior to November 28, 1990.

Production of agricultural commodities or additional manipulation will cause ineligibility.

 

Maintenance allowed to scope and effect of original manipulation

Section 514.40

(CW)

Wetland Converted by county, drainage district, or similar entity.

Converted after December 23, 1985, by drainage district or other entity and beyond a person’s direct control, but not considered third party (TP).

Production of agricultural commodities or forage for mechanical harvest or additional manipulation will cause ineligibility.

Maintenance allowed to original scope and effect of system before conversion.

Section 514.40

(CW+year)

Converted wetland

Converted after November 28, 1990.

Conversion causes ineligibility, regardless of whether production of agricultural commodity occurred.

Not applicable.

 

Section 514.40

(CWNA) 

Converted wetland for non-agricultural purposes.

Production of agricultural commodities will cause ineligibility.

No restrictions.

Section 514.52

(CWTE)

Converted Wetland Technical Error

An area converted after December 23, 1985, where the conversion or production of an agricultural commodity was a consequence of an incorrect NRCS determination.

May be used for production of agricultural commodities or forage provided no manipulation is done beyond what existed as of the date of the CWTE determination.

May be maintained to the extent that existed on the date of the CWTE determination.

Section 514.41

(FW)

Farmed Wetland

Manipulated and used for the production of an agricultural commodity as of December 23, 1985.

If the area is not a pothole, playa, or pocosin, it is inundated for at least 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years.

If the area is a pothole, playa, or pocosin, it is inundated for at least 7 consecutive days or saturated for at least 14 consecutive days during the growing season in most years.

Not abandoned.

May be used for production of agricultural commodities or forage.

May be maintained to the extent that existed before December 23, 1985, if “as- built” records exist.

May be maintained to the extent that existed on December 23, 1985, if no “as- built” records exist.

Section 514.31

(FWP)

Farmed Wetland Pasture and Hayland

Manipulated and used for pasture or hay as of December 23, 1985.

Is inundated for at least 7 consecutive days or saturated for 14 days during the growing season.

Not abandoned.

May be used for production of agricultural commodities or forage.

May be maintained to the extent that existed before December 23, 1985, if “as- built” records exist.

May be maintained to the extent that existed on December 23, 1985, if no “as- built” records exist.

Section 514.32

(MIW)

Mitigation Exemption

Converted wetland is exempt because mitigation has occurred according to an NRCS-approved plan.

As stipulated in the mitigation agreement.

As stipulated in the mitigation agreement.

Section 515.10

(MW)

Minimal Effect Exemption

Converted wetland is exempt because conversion is determined to have a minimal effect, individually and cumulatively, on the wetland functions in the watershed.

 

As stipulated in the minimal effect agreement, if applicable.

Only those activities stipulated in the minimal effect agreement, if applicable.

Section  515.0

(MWM)

Mitigation Site

Site of wetland restoration, enhancement, or creation serving as mitigation for MIW site.

As stipulated in Mitigation Plan/Agreement.

As stipulated  in Mitigation Plan/Agreement

Section 515.10

(NI)

Not Inventoried

Used when a wetland determination is not conducted.

Can determine only after a certified wetland determination is completed for the area labeled NI.

Can determine only after a certified wetland determination is completed for the area labeled NI.

Section 514.53

(NW)

Nonwetland

Does not meet wetland criteria. 

Also includes wetlands converted before December 23, 1985, but a commodity crop was not produced and the area does not meet wetland criteria.  The area has not been abandoned.

No restrictions.

No restrictions unless manipulation would convert adjacent wetlands.

Section 514.20

(PC)

Prior Converted Cropland

Wetland converted to cropland before December 23, 1985, and as of December 23, 1985, was capable of being cropped and did not meet farmed wetland hydrology criteria.

No restrictions.

No restrictions unless manipulation would convert adjacent wetlands.

Section 514.30

(TP)

Third Party Exemption

A wetland converted after December 23, 1985; by a third party who is not associated with the participant, and without the participant’s collusion, fraud, scheme, or device.  A third party does not include predecessors in interest on the tract or drainage districts or other local government entities.

 

May be used for production of agricultural commodities or forage.

Further drainage improvement will cause ineligibility.

Section 514.42

(W)

Wetland

Meets wetland criteria.

Not converted after December 23, 1985.

Also, includes areas previously identified as FW or FWP, which have been abandoned.

May be farmed under natural conditions without removal of woody vegetation.

At level needed to maintain original system on FW, FWP, and PC.  Must not convert additional wetlands or exceed original scope and effect of drainage system.

Section 514.10

(WX)

Wetlands that have been manipulated

Wetlands that have been manipulated but not for the purpose of or making possible production of an agricultural commodity.

Would cause ineligibility if production was later made possible.

No restrictions as long as production not made possible, including on an adjacent wetland.

Section 514.11

 

[M_180_NFSAM_514_G - Fifth Edition - November 2010]

Subpart H – Labels: Exemptions Due to the Relinking of Crop Insurance to Conservation Compliance
Part 514 – Wetland Determination and Labels   

Subpart H – Labels: Exemptions Due to the Relinking of Crop Insurance to Conservation Compliance

514.70  Timely Evaluation of Wetland Certifications due to the Agricultural Act of 2014, Converted Wetland Timely Assistance (CWTA)

A.  Definitions

(1)  The Food Security Act of 1985, as amended, provides that USDA will evaluate wetland compliance determination requests from Federal crop insurance program subsidy participants in a timely manner.  Converted wetland timely assistance (CWTA) are wetlands converted when NRCS does not conduct the evaluation of a compliance certification in a timely manner.  When the wetland determination is not conducted in a timely manner, the participant maintains eligibility for Federal crop insurance premium subsidies regardless of whether they are in compliance.  This exemption remains with the land and applies to participants requesting Federal crop insurance subsidy benefits only. 

(2)  The timely assistance period is defined as receiving a preliminary determination within 12 months from the date that a request for a determination is received by NRCS.  Exceptions may apply if the required evaluation is delayed due to unfavorable site conditions for the evaluation of soils, hydrology, or vegetation.  When the State Conservationist (STC) determines an exception is warranted, the STC, or delegated official, will notify the participant in writing clearly identifying the basis for the exception.

B.  Applicability

This exemption applies only to —

(i)  Federal crop insurance program participants who—

·         Certify their compliance by filing an accurate Form AD-1026, Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification.

·         Indicate their intention to conduct an activity that hasn’t been previously evaluated by NRCS.

·         Experience an elapsed time, as determined by NRCS, of greater than 12 months before receiving their preliminary technical determination from NRCS.

(ii)  Requests for certified wetland determinations, not requests for scope and effect, minimal effect, mitigation, or HEL determinations.

(iii)  A person’s eligibility for Federal crop insurance program subsidies.

(iv)  Wetland determination requests referred to NRCS on or after April 24, 2015.

C.  Timing

(1)  The timely assistance period starts when FSA refers the wetland determination request to NRCS, as indicated by signature and date in boxes 11A and 11B on the Form AD-1026.

(2)  The opportunity for a person to receive the CWTA exemption expires upon certification of a preliminary technical determination (PTD) by NRCS.  PTDs will be sent certified mail, with return receipt.

D.  Exemption

(1)  Use the label CWTA to identify wetlands that receive the timely assistance exemption.  This exemption only applies to the specific locations on the tracts referred to NRCS on Form AD-1026 that did not receive the certification within the timely assistance period.  There are no restrictions on the management of CWTA areas for Federal crop insurance benefits.

(2)  A CWTA may only be approved by the STC or a delegated official.

E.  Procedures for identifying a CWTA

(1)  The following are required to be eligible for the CWTA exemption:

(i)  A wetland conversion has occurred.

(ii)  The timely assistance period has expired for a Federal crop insurance program participant.

(iii)  NRCS received a written request for the exemption from the Federal crop insurance program participant.

(2)  Use the following table to identify a CWTA

Figure 514-H1

STEP

ACTION

1

Use the Food Security Act wetland identification procedures to assess wetland criteria. 

2

Ensure that another wetland exemption does not apply according to part 514.0 (e.g., MW, WX, etc.)

3

Provide the information found in steps 1 and 2 of this table to the STC for CWTA consideration.

514.71  Converted Wetland In-Lieu Fee (CWIL)

A.  Definition

The CWIL is an exemption created by the Agricultural Act of 2014 that allows for wetland conversions when a participant agrees to make a “payment in lieu” of wetland mitigation.  This exemption is limited to conversions less than 5 acres of an entire farm (a single FSA farm number).  The exemption requires an in-lieu-fee payment of 150 percent of the cost of an NRCS-approved mitigation. 

B.  Applicability

This exemption is applicable only to Federal crop insurance program benefits.  As such, if a person wishes to participate in other applicable USDA programs, this exemption will not apply and the converted wetland will need to be restored or mitigated as a condition of program eligibility.  If the original wetland is later restored or mitigated, this payment will not be refunded.  This exemption remains with the land in question and future operators may benefit by farming the converted wetland while retaining eligibility for the Federal crop insurance program.

C.  Procedures for Identifying a CWIL

Use appropriate procedures as described in the Food Security Act wetland identification procedures to assess wetland criteria of the sites proposed for a CWIL exemption.  The CWIL exemption may also be used to regain eligibility for Federal crop insurance program benefits after a wetland has been converted.  The CWIL exemption is only available for wetlands totaling less than 5 acres in size.

D.  Procedures for Calculating CWIL Payment

(1)  Calculate 150 percent of the cost of mitigation according to the following procedure.  Calculations will be made on a case-by-case basis for each wetlands proposed to qualify for this exemption. 

(i)  Step 1—Calculate cost of onsite restoration

·         Select the appropriate conservation practice standards (CPSs) from the Field Office Technical Guide and use the appropriate practice payment schedule to calculate the cost of each practice using the established unit, acre, and over the typical time period of implementation (e.g., weed control would occur four times in a typical restoration). 

·         Use the in-lieu fee functional assessment to document the “preconversion” status of the wetland, which will be the basis for identifying the practices needed for restoration.

·         Common CPSs may include but are not limited to—

- 327 – Conservation Cover

- 315 – Herbaceous Weed Control

- 657 – Wetland Restoration

- 644 – Wetland Wildlife Habitat Management

- 356 – Dike

- 587 – Structure for Water Control

- 612 – Tree Planting

(ii)  Step 2—Calculate the land cost

Use the geographic area rate caps (GARC) established for the Agricultural Conservation Easement Program (ACEP) Wetland Reserve Easements for the area in question. 

(iii)  Step 3—Calculate administrative and legal costs

Use the established rate of $1,000 per exemption for administrative and legal costs.  NRCS anticipates CWIL will primarily be for degraded cropped wetlands that are less than 5 acres in size.  The established rate per exemption includes title searches, surveys, title insurance, and miscellaneous legal fees.

(iv)  Step 4—Calculate site monitoring cost

Monitoring costs are based on a blended average of onsite and offsite review and reporting costs.  Use a fixed rate of $150 per acre.

(v)  Step 5—Final cost

Result of steps one through four to obtain the final in-lieu-fee rate per acre.  Each cost calculation must be clearly documented.

(2)  Example calculation

A 3-acre wetland is converted in South Dakota.  The client only participates in Federal crop insurance programs.  The client wants to know the CWIL rate to remain eligible for Federal crop insurance benefits.

Figure 514-H2

STEP 1

Results of the functional assessment identified CPS codes 327, 315, and 657 will fully mitigate the wetland conversion.  Using the 2013 practice payment schedule for South Dakota:

327 – (3 acres of native grass + forbs in wetland, includes cost of establishing grass.) = $1,245

315 – (Spraying a 3 acre wetland site for 3 years) = $240

657 – (Ditch Plug – 300 cubic yards) = $2,421

$3906

STEP 2

The 2013 ACEP GARC in eastern South Dakota is $4,500 an acre. Three acres would be valued at $13,500.

$13,500

STEP 3

The administrative and legal costs are set at a standard $1000 per mitigation.

$1000

STEP 4

The site monitoring cost for of $150.00/acre × 3 acres = $450.00

$450

STEP 5

TOTAL

$18,856

150% of TOTAL

$28,284

The in-lieu fee for this example is $9,428.00 per acre

E. Collection of Funds

(1)  The CWIL exemption will only be granted after the participant signs the CWIL agreement letter and returns the letter to NRCS (see template in 514.72, Exhibit).  When the letter is received and the debt collection process, identified below, is followed, create a new wetland determination map and Form NRCS-CPA-026e, “Highly Erodible Land and Wetland Conservation Determination,” according to section 514.1E of this manual, with the subject wetlands identified as CWIL and transmit a copy to both the participant and the FSA.

(2)  Debt Collection Using the National Accounts Receivable Services Team (NARST)

(i)  NARST enters debts to be collected into the Financial Management Modernization Initiative (FMMI) system to initiate the collection process.

(ii)  The State point of contact for NARST will notify NARST of a debt to be collected and upload a copy of the collection notice to the NARST SharePoint site.

(iii)  When the receivable is entered into the FMMI system, the National Finance Center (NFC) mails a bill to the participant, requesting payment for these amounts.  The participant must make the check payable to “U.S. Department of Agriculture—NRCS,” and follow the instructions on the bill. 

(iv)  If payment is not received within 30 calendar days of the date of the NFC bill, interest will start to accrue on the total amount requested in the letter for the full amount of the delinquent debt, including the principal and any other charges due. 

(v)  After 30 calendar days, NFC will send up to three demand letters, which provide payment options per 7 CFR Part 1403.  If there is no response after the three demand letters, NFC will then transfer the debt to the U.S. Department of the Treasury to offset the payment against any other payments issued to the participant. 

(vi)  Collection of amounts due will follow the Debt Collection Improvement Act of 1996 procedures and will accrue interest at the current value of funds rate published in the Federal Register by the Treasury Department.  The outstanding debt is referred to the Treasury Offset Program.

514.72  Exhibit

In-Lieu Fee Collection Notice


    
    

   
    

[M_180_NFSAM_514_H - 5th Ed. Amend. 2 - December 2015]

Part 515 - Minimal Effect Exemptions and Good Faith Waivers

Subpart A - Minimal Effect Exemption

515.0  Minimal Effect Exemption (MW)

A.  Background

(1)  NRCS may grant a USDA participant an exemption when he or she converts a wetland through an action that has a minimal effect on the functions and values of the wetlands in the area [7 CFR Section 12.5(b)(1)(v)], including the value to waterfowl and wildlife.  (16 U.S.C. 3822 (f)(1))

(2)  NRCS will label converted wetlands that qualify for this exemption “MW.”

B.  Types of Minimal Effect Exemptions

Minimal effect exemptions may or may not require special conditions, as described below:

Class

Description

Minimal Effect without Conditions

Actions which, upon evaluation with an approved functional assessment procedure, are determined to have a minimal impact on wetland functions and values.  (See Part 516 for functional assessment procedures.) 

Minimal Effect with Conditions

Actions which, upon evaluation with an approved functional assessment procedure, are found to have a minimal effect on wetland functions and values if special conditions are applied.

C.  State Conservationist Responsibilities for Developing Minimal Effect Procedures

The State Conservationist, with advice from the State Technical Committee, will develop and issue minimal effect procedures for assessing wetland functions, making minimal effect determinations, and approving exemptions.

D.  Clean Water Act (CWA) Permit Requirements

A USDA participant is not exempt from CWA Section 404 permit requirements on the basis of being granted a minimal effect exemption.  All persons granted a minimal effect exemption will be provided with the appropriate contact information for the U.S. Army Corps of Engineers (COE) in order to seek evaluation of an activity under Section 404 of the CWA. 

515.1  Minimal Effect Evaluation and Determination

A.  Components of the Minimal Effect Determination

The minimal effect evaluation is the technical basis for the minimal effect determination and will include the following:

(i)  Calculations from the application of an approved wetland functional assessment methodology (See Part 516) to estimate the amount of wetland function that will be or was lost as a result of wetland conversion;

(ii)  Identification of preemptive “red flag” and/or cautionary “yellow flag” conditions that could preclude a given conversion activity from qualifying for a minimal effect exemption.  Examples include:  threatened or endangered species habitat, existence of rare plant communities, location within an easement, etc.; and

(iii)  Threshold(s) for the functional assessment output data (i.e., a quantitative value at which a converted wetland would be eligible for the exemption). 

B.  Minimal Effect Evaluations Before Conversion Has Occurred

(1)  A minimal effect evaluation will be conducted when a USDA participant requests a minimal effect exemption [7 CFR Section 12.31(d)].  The minimal effect evaluation includes an assessment of the functional level of the wetland before project impacts, and an assessment of functional level after project completion.  The functional assessment component of the evaluation will be based on site conditions and must be documented using approved functional assessment worksheets. 

(2)  The USDA participant must provide NRCS with the following information before the required site visit:

(i)  Description of the proposed activity.

(ii)  Location of the proposed activity.

(iii)  Any existing restrictions on the property in question, such as easements or permit conditions.

C.  Minimal Effect Evaluations After Conversion Has Occurred

If a person has converted a wetland and then seeks a determination where the effect of such conversion on wetland was minimal, the burden will be upon the person to demonstrate to the satisfaction of NRCS the effect was minimal [7 CFR Section 12.31 (d)].  If a wetland conversion has already occurred, NRCS will use the best available information to complete the functional assessment.  The following information sources (not inclusive) should be considered:

(i)  Current and previous site visits and documentation.

(ii)  Prior wetland determinations and/or delineations.

(iii)  State wetland mapping conventions.

(iv)  Interviews with landowner or others.

(v)  Reference sites of the same hydrogeomorphic (HGM) class, subclass, and/or modifier.

D.  Minimal Effect Determination

Following completion of the minimal effect evaluation, NRCS will determine whether the conversion activities will have or have had a minimal effect on the existing wetland functions in the watershed.  If NRCS determines that the effect is or will be minimal, the NRCS representative will approve a minimal effect exemption.

515.2  Recording Minimal Effect Exemptions

A.  Documentation of Minimal Effect Exemptions

NRCS will prepare and keep a copy of the following in the participant’s case file:

(i)  Notification to the participant of the determination.

(ii)  Revised Form NRCS-CPA-026e and certified wetland determination map.

(iii)  Minimal effect agreement if specific conditions are required to ensure that the effect remains minimal (Section 515.3).

(iv)  Results of the functional assessment.

B.  Notification to Participant

(1)  NRCS will notify the person of the determination in writing.  This letter will specify that the MW exemption applies only for Food Security Act purposes.  The letter will also state that any wetland manipulations or activities remain subject to Federal, State, or local restrictions, existing easements of record, or permit restrictions on the property and activity in question. 

(2)  The NRCS representative shall issue a revised Form NRCS-CPA-026e and certified wetland determination map to the person indicating the area is MW.

C.  FSA Notification

Provide FSA a copy of the revised Form NRCS-CPA-026e with the certified wetland determination map.

515.3  Minimal Effect Agreements

Agreement Requirements

(1)  A minimal effect agreement is required if specific conditions are necessary to meet and/or maintain the minimal effect exemption.

(2)  Agreements must specify that the exemption applies only for Food Security Act purposes.  An agreement must be signed by the person before granting the exemption and finalizing the Form NRCS-CPA-026e.

(3)  If an agreement is required, it will stipulate the terms and conditions with which the person conducting the activity must comply to meet the requirements of the exemption.  Items that should be specifically addressed include:

(i)  Any existing easement or permit restrictions 

(ii)  Location of the wetland subject to the minimal effect determination

(iii)  Limitations and conditions, if any, on the extent of the activities

(iv)  Operation and maintenance of any structures

(v)  Signature of the participant and NRCS

(vi)  Date of signature

(vii)  Duration of agreement

(4)  If there are no additional or special conditions attached to the MW determination, an agreement is not required.

515.4  Monitoring Minimal Effect Exemptions

A.  Agreement Conditions

Conditions in the minimal effect agreement may require monitoring by NRCS to ensure that the person meets or maintains the requirements of the exemption.  Any monitoring requirements will be included in the agreement.

B.  Wetland Label to Use if a Violation Occurs

If a violation of the minimal effect agreement occurs, both of the following apply:

(i)  NRCS will request Form FSA-569 from FSA.

(ii)  The minimal effect exemption will be invalidated, and the converted wetlands to which it applied will be relabeled CW+year.

[M_180_NFSAM_515_A - Fifth Edition - November 2010]

Subpart B – Mitigation Exemption

Part 515 – Minimal Effect Exemptions and Good Faith Waivers 

 


Subpart B – Mitigation Exemption

515.10  Background

A.  General Information

According to the Food Security Act, no person may be determined to be ineligible for USDA benefits for converting a wetland or producing an agricultural commodity on a converted wetland if NRCS determines that the person has adequately mitigated for the lost wetland acreage, value, and functions through the restoration of a converted wetland, the restoration or enhancement of a degraded wetland, or the creation of a new wetland (16 U.S.C. Sections 3822(f) and (h)).  NRCS will label the converted wetland MIW.  The wetland mitigation site will be labeled MWM.

B.  Exceptions

The State Conservationist, with advice from the State Technical Committee, may identify certain wetland types or classes that are not eligible for the mitigation exemption.  These wetland types or classes are those for which NRCS determines that equivalent functional replacement within a reasonable period of time is not possible, or mitigation is not feasible for other reasons identified by the State Conservationist.  Any type or class of wetland that a State Conservationist identifies as not eligible for this exemption will be published in the Federal Register (7 CFR Section 12.5(b)(4)(iii)).

C.  Mitigation Requirements

(1)  To be eligible for USDA benefits, a person who converts a wetland or produces an agricultural commodity on a converted wetland that is subject to the WC provisions must mitigate the loss of the functions, values, and acreage of the converted wetland unless another exemption, such as PC, CC, or CWTE, applies (7 CFR Section 12.5(b)(4)).

(2)  The person seeking a mitigation exemption must implement a mitigation plan, agreement, or both as follows:

(i)  The USDA participant, with NRCS assistance, must develop an approved wetland mitigation plan, agreement, or both to replace the wetland functions and acres lost as a result of the wetland conversion (7 CFR Section 12.5(b)(4)(i)(A)).

(ii)  Mitigation must be completed in advance of, or concurrent with, the wetland conversion, the production of an agricultural commodity, or both, as applicable.  If mitigation is not completed in advance of, or concurrent with, the wetland conversion, the participant will be ineligible for benefits until the mitigation is completed (7 CFR Section 12.5(b)(4)(i)(B)).

(iii)  Mitigation may not be funded at the expense of the Federal Government (7 CFR Section 12.5 (b)(4)(i)(C)) for either the direct or indirect costs for any of the following:

·         Wetland restoration, creation, or enhancement to mitigate a converted wetland

·         Acquisition of a site for use in mitigating a conversion

·         Securing an easement (except if conducted under a mitigation-banking pilot program established by USDA)

(iv)  Mitigation should occur on lands in the same 8-digit hydrologic unit code (HUC) as the converted wetland (including regional mitigation banks) unless NRCS determines that it is ecologically preferable to conduct the mitigation outside of the 8-digit HUC.  This decision and the rationale for it must be documented in the administrative record (7 CFR Section 12.5(b)(4)(i)(D)).

(v)  Approved mitigation banks may be used to compensate for converted wetlands.  NRCS is a signatory to the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, which should be followed in reviewing and approving mitigation banks.  This can be found at http://water.epa.gov/lawsregs/guidance/wetlands/mitbankn.cfm.

(3)  Wetland conversion mitigation exemption for Federal crop insurance premium subsidy programs.  Unless another exemption applies, the following provisions provide additional time to mitigate wetland conversions:

(i)  A person determined to be in violation of the wetland compliance provisions due to a wetland conversion occurring after February 7, 2014, will have 1 reinsurance year after the final determination of violation, including all administrative appeals, to initiate a mitigation plan to remedy the violation, as determined by NRCS, before becoming ineligible for Federal crop insurance premium subsidies for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. Sections 1501-1524.). 

For example, in May 2017, after NRCS has determined that a person is in violation for converting a wetland and the person has exhausted all administrative appeals, the person will have until June 30, 2018, to initiate a mitigation plan to remedy the violation before becoming ineligible for Federal crop insurance premium subsidies starting with the 2019 reinsurance year.  Note reinsurance years begin on July 1 for any applicable year.

(ii)  A person determined to be in violation of the wetland compliance provisions due to a wetland conversion occurring after February 7, 2014, as determined by NRCS, and is subject to the wetland compliance provisions for the first time solely due to the Agricultural Act of 2014 relinking of compliance to crop insurance premium subsidy programs, such person will have 2 reinsurance years after the final determination of violation, including all administrative appeals, as determined by NRCS, to be implementing all practices in a mitigation plan to remedy the violation, as determined by NRCS, before becoming ineligible for Federal crop insurance premium subsidies for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. Sections 1501-1524).

(iii)  Administrative appeals include appeals made during reconsideration and those up to and including appeal to the National Appeals Division, but do not include any judicial review or appeal, or any other legal action.

D.  Granting a Mitigation Exemption

If all of the above conditions are met, NRCS may grant a mitigation exemption that will allow both of the following:

(i)  Production of agricultural commodities on the wetland area granted an exemption.

(ii)  Eligibility to participate in those USDA programs that are subject to the WC provisions.

E.  Ineligible Sites

(1)  The following land is not eligible for use as a wetland mitigation site:

(i)  Land enrolled in the following USDA conservation programs:

·         Wetlands Reserve Program wetland restoration easement for the length of the easement period.

·         Emergency Watershed Protection Program-Floodplain Easement for the length of the easement period.

·         Healthy Forests Reserve Program for the length of the easement period.

·         Conservation Reserve Program (CRP) enrolled either through the general signup, the continuous signup, or through the Conservation Reserve Enhancement Program for the duration of the contract or easement period (unless the costs associated with establishment and annual payments have been repaid to the appropriate agencies).

(ii)  Other Federal lands owned in fee title or easement, except for enhancement, if the fee/title easement holder agrees to such.

(iii)  Lands on which Federal funds were used to acquire an easement.

(iv)  Mitigation wetlands on which Federal funds are directly responsible for any of the following:

·         Creation

·         Restoration

·         Enhancement

·         Acquisition

(2)  This does not apply to Federal funds associated with short-term contracts that have expired, such as CRP. Such sites may be eligible for use as a mitigation site.

F.  Easement Requirement

(1)  A USDA participant is required to provide USDA with a warranty easement deed (WED) for wetland mitigations except for—

(i)  Restoration of the converted site.

(ii)  When the mitigation is provided as part of the CWA Section 404 permit exemption (16 U.S.C. Section 3822(f)(4)).

(2)  An example of a WED provided in exhibit in section 515.14.

(3)  Duration of Easement.—The easement will be in effect for the length of time the converted wetland is in agricultural use or is not restored to its previous wetland condition. Agricultural use refers to land planted to an agricultural crop, used for the production of food, fiber, or horticultural crops, used for haying or grazing, left idle in accordance with USDA program requirements, or diverted from crop production to an approved cultural practice that prevents erosion or other degradation.

(4)  Recording the Easement

(i)  Easements must be recorded in the public records.

(ii)  The landowner must pay recording fees and survey costs, if required.

(iii)  The landowner must certify that there are no liens on the land.

(iv)  If the land is mortgaged, the mortgage holder must agree to subordinate his or her interest to the CCC easement.

G.  Three Types of Mitigation Authorized by the Act

(1)  Three types of mitigation are authorized in the act (16 U.S.C. Section 3822 (f)) and are defined as follows:

(i)  Restoration.—Wetland restoration is the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural functions, historic functions, or both to a former or degraded wetland.

(ii)  For the purpose of tracking net gains in wetland acres, restoration is divided into the following categories:

·         Reestablishment.—The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former wetland. Re-establishment results in rebuilding a former wetland and a gain in wetland acres.

·         Rehabilitation.—The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres.

(iii)  Enhancement.—Wetland enhancement is the manipulation of the physical, chemical, or biological characteristics on either an undisturbed or a degraded wetland site that will heighten, intensify, and/or improve specific wetland functions or change the growth stage or composition of the vegetation present, and is undertaken for specified purposes such as water quality improvement, flood water retention, or wildlife habitat improvement. Enhancement may―

·         Result in a change in wetland functions and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres.

·         Include activities commonly associated with enhancement, management, manipulation, and directed alteration.

·         Not be adequate to mitigate for lost wetland functions, due to the potential loss of other functions.

(iv)  Creation.—Wetland creation means the development of the physical, chemical, or biological components necessary to support and maintain a wetland where a wetland did not previously exist. Any wetland establishment on a nonhydric soil will be considered a created wetland.

(2)  Preservation of a wetland is not an authorized form of mitigation under the act, although it may be acceptable under the CWA or local wetland regulatory requirements.

H.  Role of Wetland Enhancement in Mitigation

Enhancement results in a gain of wetland functions, but not a gain of wetland acreage. In situations where the mitigation consists of wetland creation or re-establishment that replaces the acres, but does not adequately replace all of the functions of the converted wetland, additional mitigation in the form of enhancement on a degraded wetland can be used to mitigate for those specific wetland functions. However, enhancement, if it increases a specific function or functions beyond what existed naturally, will generally result in the loss of other wetland functions.  Enhancement that results in reduction of existing wetland functions should not be used for mitigation.

515.11  Wetland Mitigation Plans and Agreements

A.  General Requirements

(1)  A wetland mitigation plan must fully document the actions that are required to adequately compensate for all wetland acres and functions that were or will be lost from converting a wetland. The mitigation plan may be a component of a larger conservation plan (7 CFR Section 12.5 (b)(4)(ii)).

(2)  A wetland mitigation agreement can be synonymous with the mitigation plan or can be a separate document that contains a short description of the conversion and the actions in the mitigation plan that will be completed in order for the USDA participant to regain eligibility for USDA benefits. The latter type of agreement must reference the plan and its requirements as a condition of its fulfillment. A separate mitigation agreement may be desired when a party other than NRCS develops the mitigation plan. The participant and NRCS must sign the agreement or plan.

B.  Goals and Objectives

Mitigation plans and agreements should discuss the environmental goals and objectives of the mitigation requirement. The plan or agreement should include a discussion of the wetland types (e.g., HGM regional wetland subclass (section 516.0), Cowardin classification, etc.), functions, and acres that will be impacted by the conversion. It should describe the amount of compensatory mitigation needed to offset the conversion and discuss the existing wetland types and functions, if any, at the compensatory mitigation sites.

515.12  Mitigation Plan Development, Approval, Monitoring, and Compliance

A.  Development of the Plan

The person requesting a mitigation exemption may―

(i)  Develop the mitigation plan.

(ii)  Employ another party to develop the plan.

(iii)  Request assistance from NRCS to develop the plan. NRCS may provide assistance, as workload allows.

B.  Use of Success Criteria

(1)  Mitigation plans should be specific, measurable, outcome-based, and tied to success criteria rather than to elements of the design.  Some examples of success criteria are as follows:

(i)  Greater than 80 percent aerial cover by at least five different species of native, hydrophytic vegetation by the end of the third growing season.

(ii)  Have saturated soils within 12 inches of the surface for a minimum duration of 14 consecutive days.

(2)  When success of the mitigation project is tied to adequate performance measures and criteria, failure to achieve those criteria will result in failure of the mitigation site.  NRCS can then require further actions to achieve compliance and mitigate for the wetland functions lost as a result of the conversion.

(3)  Success criteria may be linked to achievement of the functional levels documented on the converted wetland prior to conversion, particularly for wetland types that will be quickly established (e.g., emergent marshes).

(4)  For wetlands that require a longer period of time to become fully functional, such as forested wetlands, success criteria must ensure the site is on the right trajectory of functional increase as it goes through the succession stages necessary to become fully functional.  For example, during the monitoring period, woody vegetation should survive and thrive, achieving an “X” percent cover and an “X” height (or dbh) by year 5.

(5)  For additional information on wetland creation, restoration, and enhancement, see the National Handbook of Conservation Practices (NHCP), Conservation Practice Standards for Wetland Restoration, Creation, and Enhancement (Codes 657, 658, and 659, respectively) (conservation practices) and State conservation practice standards.

C.  Technical Requirements for Mitigation Plans

At a minimum, the mitigation plan should include the following technical requirements:

Technical Requirement

How To Accomplish the Technical Requirement

Acres

Describe the acres of HGM (or other) class of wetlands to be restored or created.

Aerial Images

Maps and aerial images showing the location of the converted wetland and mitigation site location before conversion and mitigation.

Functional Assessment

Include the completed wetland functional assessment sheets, if applicable.

Hydrology Specifications

Document the following for each proposed hydrologic zone in the mitigation area:

·    Depth, duration, and timing (hydroperiod) of proposed inundation/saturation

·    Structures required to create proposed hydrology and whether the hydrology is supported by groundwater or surface water, or both

·    Data substantiating adequate hydrology source

Soil Specifications

Include the following:

·      Soil characteristics of the mitigation site

·      Details on topsoil or soil amendments, if applicable (i.e., source, composition, and depth)

Grading Plan

If land grading will occur, provide the following:

·      Existing and proposed contours of mitigation site

·      Typical cross-sections depicting existing and proposed grades

·      Equipment to be used to grade the site

Planting Plan

Document the following in the plan:

·      Species of plants and planting location

·      Quantity of each species

·      Planting schedule

·      Seeding and planting rates

·      Minimal acceptable management level

·      Minimal acceptable survival rate

·      Invasive species control strategy

(If planting will not be done because there is a suitable seed source in the soil, provide details of seed source.)

Erosion Controls

Describe measures that will be used to control erosion and sedimentation on the site during construction.

Time Limits/Construction Schedule

Include dates and sequence of mitigation activities.  For good faith waivers, all mitigation practices must be completed within 12 months of the date the plan or agreement is signed.  A time extension may be granted upon approval by NRCS and FSA.

Permits

USDA program participant is responsible for all necessary Federal, State, and local permits.  Copies of all permits will be contained in the plan.

Compatible Uses

If applicable, specify what uses are allowed of the mitigation area and the converted area.

Monitoring

Provide specifications, frequency, and duration of monitoring.

Success Criteria

Specify measurable results that will demonstrate success of mitigation (e.g., percent cover of desired species, hydroperiod specifications).

Maintenance

Specify what maintenance activities are required by the person, how often they need to be accomplished, their purpose, and their goals.

Signatures

The wetland mitigation plan (and agreement if applicable) must be signed by the person requesting the exemption, NRCS, and any applicable third parties (e.g., property owners, easement holders).

D.  Plan Approvals

(1)  NRCS determines whether a wetland mitigation plan is technically sufficient to replace the lost wetland acreage and functions.  To assist in this determination, NRCS must use the following guidelines:

(i)  Location of the Mitigation Site.—The mitigation site should be located as close to the converted wetland as possible unless the risk of failure is high or a location further away provides more ecological benefit.  Priority should be given to on-farm sites.  The mitigation site should be located within the same watershed (8-digit HUC) as the converted wetland (including regional mitigation banks) unless NRCS determines that it is ecologically preferable to perform the mitigation outside the 8-digit HUC area.

(ii)  Success Criteria.—The following criteria shall be evaluated when approving mitigation plans:

·         A wetland functional assessment (see Part 516, Subpart A, “Wetland Functional Assessment”) will generally be used to document the mitigation wetland fully compensates for the wetland functions of the converted wetland.  This is especially important for offsite mitigation, including mitigation banks.

·         Performance measures for vegetation, soils, and hydrology have been established according to examples in section 515.12B and the NHCP.

·         Monitoring specifications for periodic NRCS inspection are defined to ensure the mitigation measures are successful.

(iii)  Mitigation Ratios.—A ratio of 1 acre mitigated for 1 acre converted is the minimum replacement ratio required by the act.  NRCS may determine through a wetland functional assessment that more acreage is needed to provide equivalent functions (16 U.S.C. Section 3822(f)(2)(D)).  Functional assessments should consider temporal loss of wetland functions (described below) and the risk of failure, in determining the appropriate ratio.  A USDA program participant may appeal a ratio that exceeds 1:1 acreage.

(iv)  Temporal Loss.—To account for differences in the ecosystem services provided by impacted and replacement wetlands, a mitigation ratio should take into account temporal loss, or the length of time before the mitigation site is functioning at the same level, or a greater level, as the converted wetland.

(2)  If an off-farm mitigation site is owned by a third party, the third party must sign the mitigation plan or agreement, and easement, and agree to maintain the subject lands according to the conditions outlined.  Failure to do so will result in ineligibility for the participant requesting the mitigation.

E.  Monitoring

(1)  NRCS will conduct follow-up inspections of the mitigation site until all practices are successfully established.  Inspections consist of the following actions:

(2)  Ensure that the success criteria in the plan are met.  This may include—

(i)  Successful establishment of vegetation.

(ii)  Restoration of the hydrological features and planned landscape features.

(iii)  A time schedule for installation and maintenance of all restoration measures.

(3)  Determine if a violation of the plan has occurred.

(4)  Ensure that the mitigation site continues to progress after being established and meeting success criteria by conducting follow-up inspections at a prescribed interval, in accordance with the State-approved monitoring protocol.

F.  Compliance With the Mitigation Plan or Agreement

(1)  If terms of the wetland mitigation plan or agreement are violated, NRCS will request Form FSA-569 from FSA.  The mitigation exemption will be invalidated and the converted wetlands for which it applied will be relabeled CW+year.

(2)  If the mitigation site does not meet the success criteria in the plan or agreement, the USDA participant will be offered the opportunity to conduct remedial actions to ensure that it will meet success criteria.  Any remedial actions must be accomplished within a reasonable period of time that is specified in a revised mitigation agreement signed by the USDA participant.  If the mitigation area ultimately does not meet success criteria, the mitigation exemption will be invalidated, and the converted wetlands will be relabeled CW+year.

515.13  Regaining Eligibility After a Violation Through Mitigation or Restoration of the Converted Wetland

The Act (16 U.S.C. Section 3822 (i)) states that a person who is determined to be ineligible for benefits because of a violation of the WC provision during a crop year is eligible for any subsequent crop year if, prior to the start of such subsequent crop year, the person has fully restored the converted wetland or has mitigated for the loss of wetland functions, as determined by NRCS.  In these cases, the participant will regain eligibility when the restoration of the converted wetland or the mitigation achieved by restoring, creating, or enhancing another wetland is fully completed and in compliance with the success criteria agreed upon in the mitigation or restoration plan or agreement

515.14  Exhibit

             WC Easement Deed Template


 
    

  
 

[M_180_NFSAM_515_B_ - 5th Ed. Amend 1 - December 2015]

Subpart C - CWA Section 404 Permit Requirements and Mitigation

515.20  COE Permit with Mitigation Exemption (CPD)

A.  Background

In accordance with 16 U.S.C. 3822(f)(4), no person will be ineligible for program loans or USDA payments if the wetland conversion subject to the WC provisions was authorized by a permit issued under Section 404 of the CWA (33 U.S.C. 1344) and the acreage and functions of the converted wetland have been adequately mitigated. The converted wetland is labeled CPD (Corps Permit Decision).

B.  No Easement Requirement

In cases where mitigation of a converted wetland is accomplished according to the terms of a COE permit, no easement is required to meet the mitigation requirements of the Food Security Act. 

[M_180_NFSAM_515_C - Fifth Edition - November 2010]

Subpart D – Good Faith Waivers
Part 515– Minimal Effect Exemptions and Good Faith Waivers   


  515.30  Good Faith Waivers of Ineligibility Made by Farm Service Agency (FSA)

A.  Statutory and Regulatory Authority for Good Faith Waivers

USDA may grant a waiver for a violation of the Wetland Compliance (WC) provisions when a USDA participant has acted in good faith without intent to violate the provisions (16 U.S.C. 3822(h)(1)).  Participants who receive a good faith waiver may regain eligibility for USDA benefits by implementing an approved wetland mitigation or restoration plan within 1 year.  Converted wetlands that are restored under a good faith waiver will revert to their previous wetland label (i.e., W, FW, FWP).  Converted wetlands that are mitigated under a good faith waiver will be labeled MIW.

B.  Good Faith Waiver of Ineligibility Responsibilities

(1)  A person who is determined to be ineligible for benefits as the result of having already converted a wetland or produced an agricultural commodity on a converted wetland may regain eligibility for USDA benefits if—

(i)  FSA determines the person acted in good faith and without the intent to violate the wetland provisions in accordance with FSA Handbook (6-CP), Highly Erodible Land Conservation and Wetland Conservation Provisions.

(ii)  NRCS approves an appropriate plan or agreement to either restore the converted wetland or mitigate for the wetland acres and functions by restoring, creating, or enhancing another wetland.

(iii)  The USDA participant implements the terms of the plan and agreement in a sufficient period of time, not to exceed 1 year from the date that the plan and agreement was signed by all parties (16 U.S.C. 3822(h)(3)).

(2)  All three steps must be completed before the USDA participant is eligible for USDA payments and benefits.

C.  Good Faith Waiver of Ineligibility Determination

(1)  FSA is responsible for determining whether the participant acted in good faith without intent to violate.  The regulations (7 CFR Section 12.5(b)(5)) state, in determining whether a person acted in good faith, FSA shall consider such factors as whether—

(i)  The characteristics of the site were such that the person should have been aware that a wetland existed on the subject land.

(ii)  NRCS had informed the person about the existence of a wetland on the subject land.

(iii)  The person planted an agricultural commodity on converted wetland when they should have known that a wetland previously existed on the subject land.

(iv)  The person has a record of violating the WC provisions or other Federal, State, or local wetland regulations.

(v)  There is other information that demonstrates that the person acted with the intent to violate the WC provisions.

(2)  Before making a WC good faith determination, the FSA county committee must, according to the procedures in FSA Handbook 6-CP, consult with NRCS.

(3)  NRCS should furnish all relevant information to FSA to use in making the good faith determination, and should specifically address the following five items on FSA Form AD-1069, Request for Good Faith Relief Wetland Conservation Violation:

(i)  The extent of knowledge the participant had about the wetlands on which the violation occurred.

(ii)  Whether the participant had been provided a certified wetland determination on Form NRCS-CPA-026e, Highly Erodible Land and Wetland Conservation Determination.

(iii)  Whether NRCS or any USDA employee had any face-to-face discussions with the participant concerning the wetlands before the violation occurred.

(iv)  If the participant had been involved in previous violations of the WC provisions or other wetland laws, either on the current tract or any other tracts that they farms.

(v)  Characteristics of the site before the conversion occurred.

D.  Good Faith Waiver Determination Review Process

Before producers are provided the mitigation/conservation plans for signature, the FSA County Committee-approved good faith waiver determination must receive approval from the FSA State Executive Director (SED) with technical concurrence by the NRCS State Conservationist. The FSA SED may delegate their approval authority to FSA district directors. The State Conservationist may delegate their responsibility for technical concurrence to NRCS area conservationists.

E.  Monitoring Requirements

(1)  If a good faith waiver is granted by FSA, NRCS will monitor the implementation of the restoration or mitigation plan in accordance with the requirements in section 515.12(E) of this manual.

(2)  In cases such as restoring forested wetlands, full mitigation for a converted wetland will require more than one year.  However, the participants must actively meet success criteria according to the time schedule of the mitigation plan.

F.  Compliance with the Mitigation Plan or Agreement

(1)  If terms of the restoration or mitigation plan or agreement are violated, NRCS will request FSA Form-569.  The good faith waiver will be invalidated and the converted wetland for which it applied will be relabeled CW+year.

(2)  If NRCS determines that the USDA participant is not fully applying the required plan, or if conditions that must be met after the first year are not met (e.g., hardwood survival or control of woody or exotic vegetation), NRCS will use FSA Form-569 to indicate the USDA participant is not in compliance with the provisions of the good faith waiver.  The waiver will be invalidated, and the converted wetland for which it was applied will revert to the previous CW+year label.

G.  Regaining Eligibility

The rule (7 CFR Section 12.5 (b) (5)) states that eligibility can be regained when two conditions are met:

(i)  FSA determines good faith; and

(ii)  NRCS determines that the person within an agreed-to period, not to exceed one year from the date the plan or agreement was signed by all parties, is implementing all practices in a mitigation plan.  NRCS will notify FSA in writing when the second condition of the exemption is met.

(iii)  A person determined by FSA or NRCS to be in violation, after all administrative appeals, due to converting a wetland after February 7, 2014, or producing an agricultural commodity on a wetland that was converted after February 7, 2014, may regain eligibility for Federal crop insurance premium subsidies for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501-1524) if all of the following criteria are met:

·         FSA determines that such person acted in good faith and without the intent to violate the wetland conservation provisions

·         NRCS determines that the person is implementing all practices in a mitigation plan to remedy or mitigate the violation within an agreed-to period, not to exceed 2 reinsurance years

·         The good faith determination of the FSA county or State committee has been reviewed and approved by the applicable FSA SED, with the technical concurrence of the State Conservationist; or district director, with the technical concurrence of the area conservationist.

  
 

 

[M_180_NFSAM_515_D_ - 5th Ed. Amend. 1 - December 2015]

Subpart E - Categorical Minimal Effects

515.40  Categorical Minimal Effects (CME)

Background

The Act states, “For purposes of applying the minimal effect under subsection (f)(1), the Secretary shall identify by regulation categorical minimal effect exemptions on a regional basis to assist persons in avoiding a violation of the ineligibility provisions of Section 3821 of this title” (16 U.S.C. 3822 (d)).  At this time, rules for this statute have not been promulgated.

[M_180_NFSAM_515_E - Fifth Edition - November 2010]

Part 516 - Wetland Functional Assessments

Subpart A - Wetland Functional Assessments

516.0  Wetland Functional Assessments

A.  Background

(1)  NRCS must use a functional assessment procedure adopted by the State Conservationist, with advice from the State Technical Committee, to assess wetland functions for minimal effect determinations (7 CFR Section 12.31(d)) and mitigation evaluation (7 CFR Section 12.30(a)(3)).  Due to their general scientific rigor, the use of a Hydrogeomorphic (HGM) functional assessment procedure developed for the specific geographic region is encouraged.

(2)  The HGM approach classifies wetlands by regional wetland subclasses based on hydrogeomorphic factors and identifies the physical, chemical, and biological functions that wetlands in those subclasses are most likely to perform.  Assessment models are developed that define the relationship between attributes of the wetland ecosystem and surrounding landscape and the capacity of a wetland to perform a given function.  The result of these assessment models is a functional index.  The functional index estimates the capacity of the wetland to perform a function relative to other wetlands within the regional subclass of the reference “domain” or area.

(3)  In the absence of HGM models or other acceptable functional assessment procedures, NRCS may develop localized assessment procedures. 

(4)  These procedures require development of reference standards through one of the following two methods: 

(i)  Field evaluation of reference wetlands, or

(ii)  Development of an “idealized” wetland as recommended by the State Technical Committee and adopted by the State Conservationist. 

(5)  Regardless of the tool being used for functional assessments, it must quantify wetland functions to provide for valid assessment of impacts to wetland functions.

B.  Role of Functional Assessments

NRCS uses functional assessments in making the following determinations:

(i)  Whether a proposed conversion will have a minimal effect on the wetland functions (see Part 515, Subpart A, Minimal Effect Exemption).

(ii)  If a completed conversion had a minimal effect on the wetland functions (see Part 515, Subpart A, Minimal Effect Exemption).

(iii)  How much mitigation will adequately replace wetland functions of a converted wetland (see Part 515, Subpart B, Mitigation Exemptions).

(iv)  Planning mitigation (replacement) wetlands.

(v)  Evaluating the success of mitigation wetlands.

C.  Developing Methods for Wetland Functional Assessment Methods

Use the following steps when developing functional assessment procedures.  Place all functional assessment procedures applicable to the State or specific geographic location in Section II of the local electronic Field Office Training Guide.

STEP

ACTION

1

The State Conservationist, with advice from the State Technical committee, will—

·          Determine wetland subclasses applicable to the State.

·          Determine which wetland functional assessment models apply to the identified wetland subclasses.

·          Identify the functions of various wetland subclasses in the State.

2

The State Conservationist will officially adopt the models determined applicable to the State.

3

Where there are no available adoptable models for wetland subclasses, the State Conservationist, with advice from the State Technical Committee, will develop a procedure that will adequately address specific wetland functions for those subclasses.

516.1 Use of Functional Assessments

A.  Functional Assessment Requirements for Minimal Effect Determinations

NRCS must use wetland functional assessments to evaluate the individual wetland hydrological and biological functions within a subclass when making a minimal effect determination.  Use the following guidance for this purpose:

STEP

ACTION

1

The State Conservationist, with advice from the State Technical Committee and local wetland specialists will—

·          Develop a decision matrix to use in evaluating the output of a functional assessment model as it applies to a minimal effect determination.

·          Establish threshold levels from the output data that cannot be exceeded in order for a USDA program participant to receive a minimal effect determination.

2

The State Conservationist will develop a minimal effect evaluation worksheet to document the output of the functional assessment. 

3

The minimal effect worksheet will be used for all conversions (CW or CW+yr) to determine if the conversion had or will have a minimal effect to all wetland functions in the watershed.  Before placing a label of CW or CW-year on a map, NRCS must properly assess the impacts of the action and make a decision that the impact exceeds minimal effect thresholds.

4

Functional assessments will not be completed without a site visit.

B.  Functional Assessment Requirements for Mitigation

In situations where a minimal effect determination cannot be granted and where wetland functions must be mitigated, a functional assessment will be used to determine the amount of mitigation required, in accordance with the following procedures:

STEP

ACTION

1

Use the functional assessment to determine the amount of equivalent functions that will be required to compensate for functions lost as a result of the wetland conversion.

2

Each function adversely affected must be adequately mitigated.

3

NRCS must include consideration of the time it takes to fully establish lost functions (temporal loss) in a functional assessment when determining mitigation ratios.

C.  Evaluating Converted Wetlands

(1)  When evaluating a converted wetland, it may be necessary to select and evaluate an undisturbed reference wetland to estimate the functions that the converted wetland performed before it was converted.  A reference wetland must be within the same subclass and similar in condition to the converted wetland.

(2)  As much information as possible must be documented on the converted wetland from remnant site conditions, aerial photographs, previous site visits, property owner statements, etc., and the following: 

(i)  The reasons for the use of a reference site.

(ii)  Why the reference wetland was selected.

(iii)  How the reference site compares to the converted wetland.

D.  Data Analysis

Data derived from the appropriate functional assessment must be properly analyzed to determine if the impacts are minimal or if proposed mitigation is acceptable.  There are two methods of data analysis:  simple and time/function.  The appropriate use of each method is explained in the Appendix.

[M_180_NFSAM_516_A - Fifth Edition - November 2010]

Subpart B - Scope and Effect Determinations

516.10  Definitions

A.  Scope and Effect

Scope and effect refers to the documentation of wetland hydrologic conditions and manipulation that occurred before December 23, 1985, or planned hydrologic manipulation on these previously manipulated wetlands (7 CFR Section 12.6(c)(2)(B)(xi)).  A scope and effect evaluation will help determine if an action can be considered maintenance, or if it is an improvement of an existing drainage or water control system.  

B.  Maintenance of Hydrologic Manipulations

Maintenance of hydrologic manipulations refers to the repair, rehabilitation, or replacement of the capacity of existing systems to allow for the continued use of wetlands currently in agricultural production, and the continued management of other areas as they were used on or before December 23, 1985.  This allows a person to reconstruct or maintain the capacity of the original system or install a replacement system that is more durable or will result in lower maintenance or costs.

C.  Hydrologic Manipulation

Hydrologic manipulations are alterations that remove water, divert water, or otherwise affect hydrology on wetlands. Manipulations may include any of the following:

(i)  Dams

(ii)  Dikes

(iii)  Ditches

(iv)  Diversions

(v)  Subsurface drains (tile)

(vi)  Pumps

(vii)  Terraces

(vii)  Fill

(viii)  Excavation and/or

(ix)  Deep ripping of a restrictive layer

516.11  Making Scope and Effect Determinations

A.  When to Make Scope and Effect Determinations

Scope and effect determinations can be completed when one of the following applies:

(i)  Conducting an initial determination for farmed wetland (FW) and farmed wetland pasture and hayland (FWP) labels,

(ii)  Evaluating an FSA-569 regarding post-1985 hydrologic manipulation on a tract, or

(iii)  Requested by a USDA participant.

B.  How To Calculate Scope and Effect of Drainage Features on a Site

(1)  A scope and effect determination is based on hydrologic conditions and is not limited to physical features of drainage structures.

(2)  A scope and effect analysis compares “before and after” hydrologic conditions or drainage system capacity.  This comparison can be based on any of the following:

(i)  Ditch or tile system records.

(ii)  Observed site conditions (e.g., original ditch profile obtained from soil inspection).

(iii)  Application of drainage equations, such as the ellipse equation or DRAINMOD.

C.  Ditches

(1)  To determine the original “as-built” profiles of drainage ditches, the following procedures may be used:  

STEP

ACTION

1

Ditch records, surveys, and soils information are collected.  Elevations of the “as-built” ditch profiles can be used as a reference point for comparison with current findings.

2

The original profile is usually covered by several inches or feet of sediment from offsite sources and sloughing from the ditch banks.  Typically, the undisturbed parent material will have a lighter color (due to lower percentage of organic matter), a higher bulk density (i.e., a more firm and compact texture), and it will be more uniform than the silt deposits.

3

A soil boring is conducted on at least one side of the ditch (beyond but near the top of the ditch bank) to a depth of at least one foot below the original profile (estimate the depth if the original profile depth is not known).  Boring both sides of the ditch is not necessary if the soil profile is similar.  At least three borings should be done in the ditch channel.  More borings may be needed if the original channel has been covered by sloughing sediment from the bank, and the existing channel represents a more recent flow path.

4

The soil texture, color, and thickness of soil horizons must be noted.  By comparing soil material in the channel with soil material outside the ditch bank, the boundary between sediment and natural soil material can be determined.

5

Elevations of the borings must be taken at the original ditch bottom.  When sediment in the ditch bottom has been penetrated to reach original soil material, the length of the soil-sampling device is subtracted from the elevation at the top of the soil-sampling device to determine the elevation of the original ditch bottom.

6

Soil boring cross sections are done approximately every 100 feet.  This distance may be increased if, based on elevations, the grade is uniform, or decreased if the grade is more variable.

(2)  This procedure works well where ditches traverse mineral soils.  Determining the original profile is more difficult for ditches dug through organic soils.  It may be possible to estimate the profile through a peat area by determining the profile of the ditch in mineral soils where the ditch enters and exits the peat area.  Accurate use of soil borings to reveal the history of a ditch requires field experience and knowledge of local soil morphology. 

(3)  If ditch maintenance has already been completed, it may be difficult to determine the original profile.  In these cases, it may be possible to find undisturbed sections of ditch above or below the maintained area, which can be used to estimate the original profile, grade, and depth, or to find culverts that indicate the original size and depth.  Ditches are usually not measurably deeper than the invert elevations of downstream culverts.  Additional information on culverts may be available from highway departments. 

D.  When the Original Drainage Profile Cannot Be Determined

(1)  If determining the original drainage profile is not possible using soil borings and culverts, or if additional information or corroboration is needed, the locations and profiles of ditches or drain tiles can sometimes be interpolated.  The apparent zone of influence of the ditch or drain tile may be determined from aerial photography or site conditions and, using drainage equations, the size and location of the drainage features that would produce that drainage effect may be estimated.  Drainage equations should be based on actual soil information (e.g., permeability), not mid-values of the mapped soil series.  Equations are located at Hydrology Tools for Wetland Determination.

(2)  Aerial photographs may show vigor or stress responses resulting from wetland conditions, such as crop stress in wet areas or increase in abundance or plant vigor. It may be necessary to compare size, vigor, or stress features of the affected species between wetland areas and adjacent uplands.  In addition, aerial photographs may show spoil piles consisting of subsoil material, which can be used to document maintenance that exceeded the original scope and effect.

E.  Documenting Scope and Effect Determinations

(1)  Scope and effect determinations must be documented in the administrative record for each site.  The following information may be useful in analyzing and documenting scope and effect:

(i)  Wetland determinations.

(ii)  Depth and duration of ponding or flooding.

(iii)  Depth to water table.

(iv)  Drainage area.

(v)  Location of drainage system within the basin.

(vi)  Lateral distances affected by the drainage system.

(vii)  Field surveys or tile plans.

(viii)  Type and description of existing or original manipulation; when the manipulation was installed; size, depth, grade, and outlet conditions.

(ix)  Soil borings to define original construction limits.

(x)  Surface inlets.

(xi)  Condition of present system.

(xii)  Soil type and related drainage information.

(xiii)  Status of woody vegetation, if appropriate.

(xiv)  Aerial photos to verify location and effectiveness of hydrologic manipulation.

(xv)  Conservation assistance notes in the case file.

(xvi)  Data provided by landowners and contractors.

(xvii)  Existing easements.

(2)  Information on existing drainage systems may be available from the drainage district, county records, consultants, contractors, local library, field investigations, and NRCS files.

516.12  Allowable Maintenance Actions

A.  Allowable Maintenance

(1)  Maintenance or improvement of drainage systems is allowable on all prior converted (PC) cropland as long as adjacent wetlands are not adversely affected.

(2)  On FW and FWP, manipulation that exceeds the scope and effect of the original manipulation will result in ineligibility for USDA program benefits.  The original manipulation is the condition to which the land was manipulated before December 23, 1985, and for which “as-built” information is available.  If no “as-built” information is available on the original system, the system as it existed on December 23, 1985, is considered the original scope and effect.

B.  Increase in Water Regime

(1)  The Act allows a landowner to maintain the hydrology of farmed wetlands and farmed wetland pastures, which existed when the Act was passed, through appropriate maintenance to the drainage systems.  In most cases, reestablishing the original depth and profile of drainage ditches or tile will achieve this.  However, there may be situations where a change in the watershed area upstream of the subject land will result in an increased hydroperiod.  In these cases, a participant is allowed to adjust the existing drainage system to accommodate the increased water regime (7 CFR Section 12.33(a)).  The participant must furnish NRCS with all appropriate documentation regarding the increased water regime, its causes, and the planned adjustments to the drainage system.

(2)  Improving the drainage or manipulation so that wetland characteristics on areas identified as wetland, farmed wetland, or farmed wetland pasture are further degraded will result in ineligibility. 

C.  Requests for Approval of Maintenance

(1)  USDA participants are not required to request permission and/or an onsite evaluation of their maintenance plans.  USDA participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.  A participant may request an onsite evaluation.

(2)  A certified determination will be completed in instances when questions 10A or 10B on the Form AD-1026 are answered “yes.”  A certified determination does not have to be completed in instances when question 10C is answered “yes.”

(3)  If a certified wetland determination has been completed, NRCS will proceed with a scope and effect evaluation if the proposed actions are considered manipulation and the manipulation is considered a conversion.

(4)  If a certified wetland determination has not previously been completed, NRCS will complete a certified determination before completing the scope and effect evaluation when necessary to determine compliance and eligibility.

(5)  The following flowchart shows the process for determining if an activity is maintenance and whether a certified wetland determination is required:

             Click here for a copy of the diagram Determining Maintenance of Drainage Systems                       

[M_180_NFSAM_516_B - Fifth Edition - November 2010]

Part 517 – Wetland Conservation Noncompliance and Eligibility

Subpart A – Reserved

Subpart B – Reserved

Subpart C – Mitigation Bank Exemption

517.20 Background
517.21 Types of Mitigation Banks
517.22 General Policy for All Mitigation Banks
517.23 Establishing a Bank Under the NRCS Mitigation Banking Program




[M_180_NFSAM_517 - 5th Ed., Amend. 3 - March 2016]

Part 518 - Compliance Review

Subpart A - Preparation for Conducting Compliance Reviews

518.0  General Information

A.  Compliance Review General Policy

(1)  USDA agencies are responsible for ensuring that a person complies with Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) provisions of the Food Security Act of 1985, as amended, before providing program benefits (7 CFR Section 12.6).

(2)  Compliance reviews are based on a national sample of tracts.  Each compliance review is a technical review of an entire tract to determine conformance with the HELC and WC provisions of the Food Security Act of 1985, as amended.

(3)  Tracts will be selected randomly.  The number of tracts selected will be sufficient to accurately assess compliance with the HELC and WC provisions of the Food Security Act at the national level.  Tract selections are based upon criteria set forth in Section 518.1.  The national sample tract lists will be provided annually to the State Conservationists (STC) by December 31. Supplemental tracts for Compliance Reviews may be added by the State Conservationist.

(4)  When tracts selected for a Compliance Review are located in a county selected for a State Quality Review, the conservation plans for these tracts will be reviewed as part of the State Quality Review.

B.  Compliance Review Assignments

The State Conservationist shall determine who will conduct compliance reviews within each State, as set forth in the following paragraphs:

(i)  All employees responsible for conducting Compliance Reviews shall have the required knowledge, skills, and abilities to assess the status of both HELC and WC compliance.  If there are currently no employees in a county with the requisite training and knowledge, skills, and abilities to perform Compliance Reviews, the Area Conservationist or STC shall assign another employee the responsibility for that specific county.

(ii)  The State Conservationist and the Directors of the Caribbean Areas and Pacific Islands are responsible for assigning staff to conduct Status Reviews within each State using methods that comply with this policy, Part 518, and the regulatory provisions of 7 CFR Section 12.  The State Conservationist may utilize either of the following approaches for staffing compliance reviews:

(iii)  State or Area-Assigned Compliance Review Teams.

(iv)  Employees from adjacent counties.

(v)  A combination of (i) and (ii).

(vi)  The State Conservationist or designee shall ensure Compliance Review procedures are consistent with Parts 518 and 519, and the Quality Control Manual.

(vii)  The State Conservationist or designee shall assure consistent and uniform HEL/wetland determinations and/or delineations within the State and between adjacent States.

(viii)  The State Conservationist or designee shall assure actions taken pertaining to requests for variances are executed and completed within the specified timeframes.

(ix)  The State Conservationist or designee shall assure execution of policy is consistent and uniform within the State and among adjacent States.

(x)  The State Conservationist or designee shall assure corrective action is taken to address deficiencies found in quality reviews.

(xi)  The State Conservationist or designee shall determine if additional reviews are required.

(xii)  The State Conservationist or designee shall provide training and follow-up to correct deficiencies.

(xiii)  The State Conservationist or designee shall identify potential cases of fraud, waste, and abuse.

(xiv)  Only NRCS employees have the authority to determine if a USDA participant is in compliance with the HELC and WC provisions of the 1985 Food Security Act, as amended (Public Law (PL) 107-171, 116 Statute 233).

C.  Notification to the USDA Participant

(1)  The NRCS employee shall notify, in writing, the USDA participant when a tract under his or her control has been selected for a compliance review (See NFSAM Exhibits).  Notification shall not be more than 30 days prior to the review, or less than 15 days prior to the compliance review.

(2)  The landowner or operator should be invited, but not required, to participate in the compliance review, unless the compliance review is for purposes of reinstatement.

D.  Correct Timing for an Official Compliance Review

The State Conservationist shall determine when compliance reviews will be conducted.  The following criteria shall be considered when determining the schedule for conducting the field compliance reviews:

(i)  The best time to evaluate the conservation practices that make up the approved conservation system.

(ii)  The critical erosion period for either wind or water of the crop year for the annually tilled crop and the conservation system or conservation practice being reviewed.

(iii)  All compliance reviews must be completed by no later than November 15 of each year.

(iv)  Whistleblower complaints must be investigated within 45 days of receipt of the complaint.

E.  Explanation of a “Crop Year”

(1)  A crop year is the year in which a single crop is harvested.  The crop year ends when that crop is harvested. When multiple crops are grown in a year, the crop year ends when the last crop is harvested.  When a cover crop or fallow period is part of the cropping system, these time periods are considered to be part of the next crop year. 

(2)  Example:  In a wheat/fallow cropping system, the crop year begins immediately following the harvest of the preceding wheat crop and includes the fallow period, the planting, growth, and harvest of the next wheat crop.  The appropriate time for conducting the compliance review is immediately following the planting of the new wheat crop.

(3)  An NRCS decision of non-compliance with the HEL provisions is effective for the entire crop year.  NRCS shall identify the crop year for which the violation is applicable.

F.  Compliance Review Following a Variance or Exemption

Compliance reviews on tracts conducted in the year following a variance or exemption may be limited to either of the following:

(i)  A review to determine if the reason the variance was granted has been alleviated or corrected; or

(ii)  A review to determine if the USDA participant is using an acceptable conservation system.

Note:  A complete compliance review does not need to be repeated unless determined by the District Conservationist or the tract is again selected through the random process.

G.  Conservation System Revision

NRCS will not provide technical assistance for conservation planning or conservation system modification or revision until after the compliance review has been completed, unless the following situations apply:

(i)  Planned structural conservation practice(s) are scheduled to be installed during the same crop year as the review, but after the review has taken place.

(ii)  Existing structural conservation practices are in need of maintenance.

(iii)  The compliance review is completed when onsite field work has been performed.

(iv)  A conservation system is being applied that meets the FOTG requirements, but has not been officially documented in the USDA participant’s case file.

518.1  Tract Selections

A.  Tract Selections for the National Sample

(1)  Tract selections are based on the following criteria:

(i)  Tracts for no more than five percent of all FSA Farm Credit Loans. Tract selection will be provided by National Headquarters (NHQ) through the Compliance Division.

(ii)  Tracts with USDA payments subject to the HELC/WC provisions that were received during the past crop year, where a significant benefit level has been attained.

(iii)  Tracts with stratification of areas where annual crop production is high and participation in USDA programs subject to the HELC/WC is of a significant level.

(iv)  Tracts having potential HELC characteristics.

(v)  Tracts having potential wetland characteristics.

(vi)  Tracts with CRP contracts, early contract termination, and contract expiration.

(vii)  Tracts with other significant characteristics where potential violations might be expected to occur.

(viii)  Five percent of tracts owned by USDA (FSA and NRCS) employees.  These tracts will be reviewed at least once every three years. Tract selection will be provided by NHQ through the Compliance Division.

(ix)  Tracts where 20 percent or more of the tracts in a previous year’s compliance review have been determined to be NA, PV, (See Section 518.11(F)) or given a variance; an appropriate number of tracts will automatically be added to the national sample for that State.

(2)  Annually, the national sample tract lists will be provided to the State Conservationist by December 31.

B.  Tract Selection Exemption from FOIA

The listing of tracts selected for current year compliance review is an agency internal procedure and is exempt from disclosure under the Freedom of Information Act under exemption b(2).  This provision exempts internal matters of a substantial nature, the disclosure of which would risk the circumvention of a statute or agency regulation.

C.  Mandatory Tract Selections to Be Added to the National Sample at the Local Level

The following tract selections and/or additions are to be made locally:

(i)  Tracts for five percent of all FSA Farm Credit Loans

(ii)  Tracts referred by other USDA agencies

(iii)  Tracts of USDA participants requesting reinstatement

(iv)  Tracts where a variance or exemption was granted the previous year

(v)  Tracts reported through a whistleblower compliant.

Note:  Where a variance was provided because of a disaster event, those tracts do not need to be added to the following year’s random compliance review list.

D.  Optional State and Local Tract Selections

(1)  Prior to November 1, State Conservationists may request that NHQ add tracts to the national sample list being drawn for any of the following reasons:

(i)  Findings from the previous year’s compliance review or quality assurance review.

(ii)  Either a high or low percentage or number of NA or PV determinations from the current or previous year’s compliance review findings.

(iii)  A high percentage or number of recurring variances.  (Exception:  variances issued for a disaster.)

(2)  The State Conservationist will consult with the Director of the Compliance Division to determine the number of additional compliance reviews to be performed.  The Director of the Compliance Division will select the additional tracts.

E.  Tract Selection Category Codes

Compliance review tracts shall be coded as follows:

(i)  R — Tracts selected nationally by NRCS from the National Computer Center based on the random sample.

(ii)  V — Tracts added due to a prior year’s variance or exemption.

(iii)  U — Tracts owned or operated by a USDA (FSA or NRCS) employee (See Section 518.1(A)(1)(viii)).

(iv)  A — Tracts added to the compliance review list as follows:

·          Tracts where reinstatement has been requested by a USDA participant.

·          Tracts referred by another USDA agency.

·          Tracts with prior-year potential violations that were observed by NRCS (when the 45-day/1-year technical assistance variance rule.

·          Tracts reported through a whistleblower complaint.

(v)  T — Tracts with technical assistance variance.

(vi)  W — Tracts added by a State identifying a wetlands tract for review.

(vii)  M — Replacement tracts for an invalid or not found tract in the sample data or a replacement tract for a combined No Wetlands and NN or NC determination.  (Note:  Not a user-added category.)

Note:  Categories R and V are made available by NHQ.  Categories U, A, T, W, and M are choices for additional tracts entered by State or field offices.

518.2  Review of and Adjustment to the Compliance Review List

A.  Farm or Tract Number Reconciliation

(1)  Upon receipt of the compliance review tract list at the local level, the District Conservationist shall review and reconcile tract or farm number discrepancies with the local FSA office.

(2)  Tracts and farms that have been assigned new farm or tract numbers by FSA will be changed to the new farm and/or tract numbers on the compliance review database, including the current USDA participant name(s), address(s), and other contact information.

B.  Tracts Previously Determined “NA” or “CW+YR”

(1)  If a tract on the current year’s compliance review list was previously determined to be “Not Actively Applying” (NA) or “Converted Wetland + Year” (CW+YR), and have not been through the reinstatement process, then a replacement tract shall be selected.

(2)  Reconcile this data with FSA to ensure that their violation flags are set correctly.  Ensure that the USDA participant has been notified of the HELC or WC violation, as well as the appropriate appeal and mediation rights.

C.  Requirements for Review and Tract Replacement

If, through tract reconciliation or other means, there still remains a concern that a tract may not be subject to the compliance provisions, the following table provides general guidance for replacing those tracts.  However, it must be remembered that a compliance review is a two-fold process — tracts must be reviewed for compliance for both HELC and WC provisions.  Even if there are no annually tilled commodity crops being produced on the tract, a program participant is still responsible for complying with the WC provisions, and NRCS must ensure appropriate compliance.

      Click here for a copy of the table providing general guidance for replacing tracts         

Note:  A tract may currently be listed as part of a farming concern that had received USDA benefits in the prior crop year on the NCC Kansas City, Missouri, database.  However, that database may not be up to date and may not reflect changes that affect the need for a compliance review or the separation of the tract from the original farming concern.

D.  Review to Determine “Conflict of Interest”

(1)  The District Conservationist shall review the completed compliance review list to determine if there might be a potential conflict of interest for the NRCS employee assigned to perform the compliance reviews.  A potential conflict of interest may be, but is not limited to, the following criteria:

(i)  Tracts owned or operated by the employee, family members, personal friends, Conservation District officials, or other individual that could be considered as being a conflict of interest.

(ii)  Tracts previously owned or operated by the employee or family members where circumstances might imply or interfere with an impartial review of the tract.

Example:  Foreclosure on a tract of land or loss of a contract bid for farming the land.

(2)  Where a potential or actual conflict of interest is found to exist, contact the next level line officer to arrange for assistance in completing reviews of those tracts.

518.3  Exemptions from Compliance Reviews (for HELC Components Only)

A.  Conditions for Exemptions of a Tract or Field from Compliance Reviews

NRCS may exempt tracts from the compliance review process if the tract has been randomly selected and documentation in the case file supports any of the following:

(i)  The tract has been reviewed at least once in the past two years and found to be actively applying an approved conservation system or conservation plan (Note:  If an entire tract is exempted from the review, the District Conservationist shall request another tract selection from the Area or State Conservationist.).

(ii)  Where crop residue management or use is the only practice in the conservation system or conservation plan for a specific field(s) within the tract, and the USDA participant has either self-certified or provided to a Technical Services Provider certification that the residue levels meet the requirements of the conservation system or conservation plan as specified in the FOTG.

(iii)  The USDA participant is applying a Resource Management System.

Note:  Tracts exempted for reasons set forth in Sections 518.3 (A through C) must still be investigated for any potential WC violations.

B.  Documentation Requirements for Tracts Exempted from Compliance Reviews

(1)  Self-certification records shall become a part of the compliance review record in that person’s case file.

(2)  Only the HELC portion of the review can be exempted for the above listed conditions. All tracts on the compliance review list, with the exception of those added for a specific purpose, must be reviewed for potential wetland violations.

C.  Tracts Exempted from Compliance Reviews

(1)  If an entire tract meets the criteria for exemption from the HELC portion of the compliance review, then the tract shall be coded “EX” for exemption from the HEL review.  If only a field is exempted, then fully document the field exemption in the explanatory section of the compliance review tool.  Then code the tract with the appropriate compliance review code for the HELC portion of the compliance review based on the remainder of the field compliance review.

(2)  The compliance review information for the review of potential WC violations shall be completed and appropriately coded.

D.  Partial Review of a Tract

Compliance reviews may be limited to a partial review of the tract if the following criteria apply:

(i)  A compliance review is being conducted as a result of a variance being granted in the prior crop year.  The compliance review may be limited to the field or practice for which the variance was granted.  If conditions warrant, the District Conservationist may elect to review the entire tract.

(ii)  The HEL review has been exempted due to any of the reasons listed in Sections 518.3 (A through C) above.  A review of the tract will be conducted for any potential wetland violations only.

E.  Exemptions for Widespread Weather Variances

Tracts where a variance was granted due to a disaster do not have to be included on the following year’s compliance review list, unless other conditions for a specific tract prevail.

[M_180_NFSAM_518_A - Fifth Edition - November 2010]

Subpart B - Compliance Reviews

518.10  Conducting Compliance Reviews

A.  Compliance Review Database

A Web-based application for Food Security Act compliance reviews has been developed to record, transmit, and store compliance review information.  This application, and the instructions for use, is a part of the NRCS Integrated Accountability System.  The Compliance Review program is used by NRCS employees to record compliance status reviews.  The User Guide is a part of the Web-based application.  (See Accountability Information Management System)

B.  Office Reviews

(1)  Compliance reviews may be conducted as stand-alone reviews or in conjunction with State Quality Reviews.

(2)  An office review of available data shall be completed prior to performing the field portion of the compliance review. The office review shall consist of the following steps:

Review of aerial photography, slides, topographic, or other map bases to determine:

·          Fields being cropped,

·          Wetland signatures and characteristics,

·          Soil mapping, and

·          Potential presence of hydric soils or hydric soil inclusions.

(3)  Review of the original HELC and/or WC determination for accuracy.

(4)  Review all supporting data in the case file to determine if all variances or exemptions issued have been fully reconciled.

(5)  Evaluate the conservation system using the current version of RUSLE or WEPS.

C.  Field Reviews

Field reviews shall include the following components, unless exclusion has been specifically provided:

(i)  The entire tract, regardless of the selection criteria (HELC or WC), shall be reviewed for both HEL and wetland conservation compliance.

(ii)  If a tract number on the random tract list has been reconstituted by FSA into two or more tracts, all the resulting tracts shall be included in the compliance review.  Each separate tract shall be entered into the database separately, and coded as an “R” category.

(iii)  Review crop residue levels as per the National Agronomy Manual and/or the National Range Manual, as appropriate.

(iv)  Review the cropping system actually being used, using the current version of RUSLE or WEPS.

(v)  Review the entire tract for potential wetland violations. 

Note:  Assumptions of past or future year plantings used to determine compliance with the HELC provisions are not appropriate.  The actual conservation system, including the cropping rotation, cultural practices, and conservation practices installed and maintained, shall be the basis for the compliance review determination to be made.  Where the evidence of compliance, including a USDA participant’s records, is inconclusive, do not assume compliance or non-compliance. Instead, grant a variance, if appropriate. 

D.  Field Reviews of “Sodbuster” Crop Fields

(1)  If a sodbusted field is discovered that does not have an approved conservation system documented in a conservation plan, the field review shall be documented as follows:

(i)  Date of the conversion from native vegetation to annually tilled cropland.

(ii)  The cropping history since the conversion from native vegetation.

(2)  In determining the conservation system being applied, use the current cropping year information and crop management history since the date of sodbusting.  The cropping sequence evaluation starts with the date of the conversion and ends at harvest of the current year.

(3)  In no case will any carryover effect of the previous native vegetation (sod or trees) be considered when calculating the predicted soil loss for the conservation system being applied.

(4)  The rotation and tillage (cropping system) that is being used on the sodbusted field(s) should be used to calculate the predicted soil loss. The predicted soil loss for sodbusted fields must be no higher than the allowable soil loss tolerance for the field (i.e., no substantial increase).

(5)  If a sodbusting violation is discovered during the first year of conversion from native vegetation, and the soil loss (to date) is less than the soil loss tolerance for the predominant HEL soil mapping unit, there may not be enough information to determine compliance with the requirements for meeting the “no substantial increase” definition for the entire system being used.  Grant the appropriate variance and schedule compliance reviews until sufficient crop management information is available to determine compliance with the conservation provisions.

518.11  Determining Compliance with the HELC/WC Provisions

A.  Conducting the Review

When a compliance review is conducted, the conservation system that is being used to produce the annually tilled crops at the time of the review will be documented using the compliance review tool.

B.  Compliance Review Documentation

Complete documentation for each tract where a compliance review is conducted will be entered in the appropriate data entry locations included in the Compliance Review Database.  The database has space for explanation, comments, and other information that would support the rationale for the compliance review determination. A paper copy of the compliance review determination report for each tract may be placed in the USDA participant’s case file.

C.  Determining Compliance with the HELC/WC Provisions       

(1)  To be determined “actively applying” an approved conservation system or conservation plan, the following criteria must be met:

(i)  All conservation practices are being applied and maintained in accordance with the FOTG requirements ((7CFR Section 12.23(a)).

(ii)  The allowable soil loss from the conservation system shall not exceed the maximum allowable soil loss for the predominant highly erodible soil mapping unit in the field, as set forth in Section 512.0.

(iii)  For a cropping system that is currently not included in the FOTG where annually tilled crops (or sugarcane) are being grown with an acceptable conservation system as defined in Section 512.1, the cropping system being used meets the minimum requirements of the FOTG.

(iv)  For reinstatement after an HEL violation, a determination of “actively applying” will be when the first crop is planted according to the conservation system agreed upon following the violation. Or, any revised conservation system that meets the FOTG requirements for erosion reduction for the field conditions as set forth in Section 512.0.  The years of non-active application will not be averaged into the conservation system being implemented following reinstatement procedures.

(v)  For NRCS to consider that a crop rotation and/or a conservation cropping sequence are being used, a full cycle of the crop rotation does not need to be accomplished. When the most conserving portion of the conservation cropping sequence has been applied, the conservation system is considered to be actively applied. 

Note:  This does not alleviate the USDA participant’s responsibility to fully implement and maintain a conservation system that will meet the HELC soil erosion reduction requirements, the FOTG requirements, and Section 512.0.

(2)  Active application for conservation tillage systems or crop residue use or management is based on the amount of crop residue present at the prescribed time in the crop year being reviewed.

(3)  Review all areas on the tract to ascertain compliance with the wetland conservation provisions since December 23, 1985, or November 28, 1990.

D.  Supporting Documentation

Supporting data, such as FSA records and the USDA participant’s records, may be used where appropriate to determine if practices have been implemented.  All documentation relied upon in making a technical determination not currently available in the USDA participant’s case file must be placed in the file in support of the technical determination.

E.  HEL Compliance and Conservation System Field Trials

If, at the end of the conservation field trial period, the conservation system under evaluation will not meet the HELC requirements, then the tract will not be determined to be in violation.  Rather, the USDA participant will be provided sufficient time, not to exceed 1 year, in which to develop and apply a conservation system that will meet the HELC requirements (7CFR Section 12.23(c)).

F.  Compliance Review Determination Codes

 Click here for a copy of the Compliance Review Determination Codes                       

518.12  HEL and Wetland Conservation Compliance Violation Determinations

A.  Notification

(1)  NRCS shall provide official notification in writing to all persons having an interest in a tract or farm within 10 calendar days following an NRCS determination that a USDA participant is in potential violation of either or both the HELC or WC provisions. This notification shall follow all the requirements as set forth in the 440-CPM, Part 510, Appeals and Mediation.

(2)  Copies of the notification shall be sent to the Conservation District and the FSA County Office, as appropriate.

B.  Completing Form FSA–569

(1)  NRCS shall request Form FSA–569 from the FSA County Office within seven calendar days of making a compliance violation determination, including any of the following violations:

(i)  Not actively applying a conservation plan or conservation system.

(ii)  Not using an approved conservation system.

(iii)  Denying access to the farm or tract to a USDA employee on official business.

(iv)  Violations of the wetland conservation provisions.

(2)  Form FSA–569 shall be used to:

(i)  Inform FSA of the final technical determination made by NRCS.

(ii)  Provide FSA with a notice of potential non-compliance.

(3)  The completed Form FSA–569 will be provided to the FSA County Office when the NRCS technical determination becomes final (See 440-CPM, Part 510, Subpart B, Preliminary and Final Technical Determinations).

C.  Determination of Non-Compliance

(1)  PL 107-171, 116 Statute 233 set forth the following provisions: “…The Secretary shall have, and shall not delegate to any private person or entity, authority to determine whether a person has complied with this subtitle.”

(2)  This provision of the statute affects both determinations of non-compliance for HELC (16 U.S.C. 3811(b) and WC (16 U.S.C. 3821(e)).  Therefore, no person other than an NRCS employee may provide notification to FSA of a potential violation of the HELC/WC provisions for any reason.

D.  Appeals Process

When NRCS issues a technical determination that could be considered to be adverse to the USDA participant, appeal and mediation rights must be provided.  The appeals and mediation processes for Title XII programs are set forth in 440-CPM, Part 510.

E.  Equitable Relief

(1)  A USDA participant may be eligible for Equitable Relief as set forth in Section 1613 of the Farm Security and Rural Investment Act of 2002 (the 2002 Farm Bill), PL 107-171, for violations of specific NRCS conservation programs. The NRCS Equitable Relief Policy will be set forth in 440-CPM, Part 509, Equitable Relief from Ineligibility for Conservation Programs.

(2)  Equitable Relief is not applicable to either HELC or WC potential violations.

[M_180_NFSAM_518_B - Fifth Edition - November 2010]

Subpart C - Reserved


Subpart C – Reserved

[M_180_NFSAM_518_C - Fifth Edition - November 2010]

Part 519 - Quality Assurance

Subpart A - HELC/WC Quality Assurance Reviews

519.0  General Information

A.  Quality Reviews

Quality control and assurance activities are conducted to ensure that NRCS properly carries out its responsibilities for HELC/WC provisions.  Quality assurance reviews often present an opportunity for commendations for current actions and recommendations for improvement.

B.  Purpose

The NRCS Chief will establish a process for ensuring that the HELC/WC program responsibilities are carried out in a manner that meets the requirements of the law, regulation, and agency policy.

C.  Quality Assurance Responsibilities

The Deputy Chief for Strategic Planning and Accountability will—

(i)  Be responsible for quality assurance in the Nation.

(ii)  Ensure that any new HELC/WC policies or procedures are implemented efficiently and uniformly among the States.

(iii)  Ensure consistent and uniform wetland determinations and/or delineations among the States.

(iv)  Coordinate soil mapping unit erosion rates permitted across State lines.

D.  The State Conservationist will—

(1)  Initiate quality control procedures consistent with HELC/WC policy in this manual and with specific conservation program policy in GM-300, Part 400, and GM-450, Part 407.

(2)  Ensure consistent and uniform HELC and WC determinations and/or delineations within the State and between adjacent States.

(3)  Ensure that actions taken pertaining to requests for variances are executed and completed within the specified time frames and as set forth in this manual.

(4)  Ensure that execution of policy is consistent and uniform within the State and among adjacent States.

(5)  Ensure that State quality control reviews are conducted.

(6)  Ensure that corrective action is taken to address deficiencies found in status and quality reviews.

(7)  Determine if additional reviews are required.

(8)  Provide training and follow-up to correct deficiencies.

(9)  Identify potential cases of fraud, waste, and abuse.

519.1  Guidelines for Quality Assurance Reviews

A.  Procedure

In conducting quality assurance reviews:

(i)  Conduct complete and comprehensive reviews.

(ii)  Coordinate the review schedule with all parties to the review.

(iii)  Randomly select:

·          Field offices and tracts for reviews, if the quality assurance review is completed by the State office.

·          State, area, and field offices and tracts for reviews, if the reviews are done at the national level.

(vi)  Conduct an entrance and an exit conference.

(v)  Outline all of the findings and recommendations for needed corrective action.

(vi)  When a prior decision is found to be in error, change the prior decision to reflect the correct findings.  All parties to the incorrect decision shall be notified, and appeal rights, if applicable, shall be provided as set forth in440-CPM, Part 510.

(vii)  Ensure that corrective action is taken to address deficiencies found within an appropriate time frame.

(viii)  Provide information copies of all quality reviews completed at the national level to the appropriate division directors, including:

·          Narrative of the review findings.

·          Recommendations for improvement of NRCS operations.

·          Corrective actions that need to be taken and the timeline for completing all actions.

 

B.  Reports

A detailed report of the quality assurance activities, findings, and recommendations shall be prepared that sets forth the following:

(i)  Purpose and/or objectives.

(ii)  Participants.

(iii)  Background:  total tracts, tracts reviewed, offices visited, approved variances, State quality control plan implementation, conservation plan quality, etc.

(iv)  Scope of review (identified deficiencies).

(v)  Findings:

·          Recommendations to correct identified deficiencies.

·          Agreed-to items and response dates.

·          Appropriate commendations.

(vi)  Signature of the reviewing official.

(vii)  Copies to the appropriate division directors if the review was conducted by NHQ.

C.  Quality Assurance Agreement

A quality assurance agreement shall be developed that will set forth:

(i)  A table of all corrective and recommended actions, and

(ii)  A schedule for completion of corrective actions.

D.  Quality Assurance Follow-up

The appropriate NRCS official shall:

(i)  Document all action taken in response to any agreed-to items.

(ii)  Report, in detail, on all actions taken to the next higher level of supervision.

519.2  Quality Control Reviews

A.  Items Covered in a Quality Control Review

All NRCS work for HELC/WC provisions will be incorporated in the State Quality Control Review, including the following:

(i)  A sample of all HEL and wetland determinations and/or delineations.

(ii)  Outline of wetlands on FSA base maps/digital orthophotography.

(iii)  Conservation program eligibility determinations where HELC/WC compliance is a condition of program eligibility and/or participation.

(iv)  HEL conservation plan and/or conservation system implementation.

(v)  Status reviews previously completed, including variance and exemptions granted.

(vi)  A sample of all appeals of HELC or WC determinations and/or delineations.

 

B.  Content of a Quality Control Review

The Quality Control Review will include, as appropriate:

(i)  Staff assignments for quality control functions.

(ii)  Actions and procedures to be used to ensure quality of all completed status reviews and/or other HELC/WC activities.

(iii)  Training activities scheduled or completed that were held to correct identified deficiencies from current and prior years, and other scheduled training.

(iv)  Other actions needed to correct deficiencies.

(v)  Specific staff assignments for action items.

(vi)  Specific timing for completion of action items.

(vii)  Procedures to be followed in conducting quality reviews, including written notification to field offices of deficiencies found.

(viii)  Procedure for ensuring that "not actively applying" determinations made during quality reviews have an FSA-569 issued.

(ix)  Guidance on the delegation of authority along with the use and/or approval of status review variances.

(x)  Guidance issued on the release of information regarding HELC/WC records under the Freedom of Information Act and the Privacy Act.

(xi)  State guidance on national policy to be followed on servicing appeals, complaints, and possible violations.

(xii)  The official list of NRCS employees, updated annually, who own or operate farms subject to the HELC/WC provision.

(xiii)  A review to ensure that all status reviews have been completed in a timely manner as set forth in Part 518.

 

C.  Conducting Quality Control Reviews

Quality control reviews shall be conducted:

(i)  In accordance with the following NRCS policy:

·         GM–120, Part 404

·         GM–120, Part 408

·         GM–180, Part 409

·         GM–450, Part 401

·         GM–450, Part 407

·         National Planning Procedures Handbook (NPPH)

·         National Food Security Act Manual (NFSAM)

·         Conservation Programs Manual (CPM)

·         National Emergency Watershed Protection Program Manual

·         National Watershed Program Manual

·         National Agronomy Manual

·         National Range and Pasture Handbook

·          National Handbook of Evaluations, Audits, Investigations, and Reviews

Note:  This document is currently under development.

(ii)  By persons from outside the subject NRCS office.

(iii)  If appropriate, in coordination with the local FSA office.

(iv)  Throughout the year and coordinated with other conservation program quality assurance activities.

(v)  To include tracts having current year activity, including both positive determinations, negative determinations, and variances granted.

(vi)  To include specific tracts selected by NHQ.

(vii)  To include all new activity on NRCS employee-owned and/or employee-operated land having current year activity, including positive and/or negative determinations.

D.  Errors with Prior Determinations or Delineations

When a prior technical determination or decision is found to be in error during a quality control review, the following actions will be taken:

(i)  The prior incorrect technical determination and/or decision will be changed to reflect the correct finding.

(ii)  Appropriate notifications shall be made to all parties potentially affected by the changed determination or decision.

(iii)  Appeal and mediation rights will be provided as set forth in 440-CPM, Part 510.

[M_180_NFSAM_519_A - Fifth Edition - November 2010]

Part 520 - Technical Assistance, Exemptions, Variances, and Investigations

Subpart A - Technical Assistance in HELC Implementation


520.0  Requirements for Measuring Crop Residue Measurement

A.  Introduction

The 1985 Act, as amended, permits persons (producers) to provide crop residue measurements (including those provided by a third party) for determining compliance with required residue levels included in the conservation system (16 U.S.C. 3812a(c)(1)(D)).

B.  Measurement

(1)  Methodologies for measuring crop residue are currently available to all persons.  Measurement of crop residue in the field is an important consideration in determining the performance of cropping systems with regard to erosion management. 

(2)  Measurements made by third parties and used by a producer will be the producer’s official measurements. 

Note:  Crop residues incorporated within the top 2 inches of the soil profile and the effects of the growing crop shall be accounted for in status reviews using RUSLE technology and are NOT part of the crop certification process.

C.  Measurement Techniques

Crop residue measurements shall be completed according to the procedures set forth in the National Agronomy Manual (NAM), Part 503, Subpart E, Section 503.43 for the “Line-Transect Method,” and the National Range and Pasture Handbook (NRPH), Chapter 4, Inventorying and Monitoring Grazing Land Resources for the “Clip-and-Weigh Method.”

D.  Third-Party Crop Residue Measurements

(1)  As provided for in the Food Security Act of 1985, as amended, a USDA participant may utilize the services of a third-party technical service provider to make crop residue measurements. 

(2)  All measurements provided in this manner shall be completed according to the procedures set forth in the NAM, Part 503, Subpart E, Section 503.43 for the “Line-Transect Method,” and NRPH, Chapter 4, Inventorying and Monitoring Grazing Land Resources for the “Clip-and-Weigh Method.”

520.1  Requirements for Self-Certification

A.  Self-Certification

A USDA participant may provide self-certification of:

(i)  Compliance with the HELC/WC provisions (on Form AD–1026).

(ii)  Application of the required HEL conservation plan or HEL conservation system practices.

(iii)  Crop residue measurements.

B.  Certification of Planning and Application

(1)  Person(s) or (producers) are responsible for making decisions necessary for applying practices as scheduled in the conservation system. 

(2)  When the practices in a conservation system are not applied as scheduled, the land will be in non-compliance unless the person provides information to the satisfaction of the local conservationist that the system being applied meets the criteria in the FOTG.  (See Section 518.12(C) on specific prohibitions regarding making non-compliance or potential violation determinations.).

(3)  If the system being applied is not documented in a conservation plan, the persons responsible for planting the agricultural commodity, and all signatories to Form AD-1026, are responsible for providing the appropriate records for evaluating the system being applied with the criteria contained in the FOTG.

 

C.  Requirements for Third-Party Vendors and Technical Service Providers

Any person that wants to provide or is providing technical assistance to a USDA participant regarding certification of compliance with the HELC/WC provisions must meet the requirements set forth in the Interim-Final Regulation, 7 CFR 652, Technical Service Provider Assistance.

D.  Records of Plan/System Application

(1)  Evaluation of conservation systems is best done over the cycle of one or more crop rotations rather than in any given year.  In order to do this, it is necessary to establish and annually review system history records.

(2)  Persons are encouraged to keep records of crop rotations, tillage operations, and maintenance work done on structural practices, including drainage systems, to support their certification of compliance made on Form AD–1026.

E.  Information to Document

(1)  Historical records may be used in conducting status reviews.  Annual documentation needed for each field can include:

(i)  Management records;

(ii)  Maintenance records;

(iii)  Residue level after planting;

(iv)  Crops grown and rotations used;

(v)  Use of any cover crops;

(vi)  Agrichemical use records;

(vii)  Tillage operations used;

(viii)  Custom harvesting records;

(ix)  Other treatments or practices used; and

(x)  Acreage reported for crop insurance policy or loss adjustment.

Note:  This is not an all-inclusive list of historical records that may be useful in documenting the status of compliance on a field or tract.

(2)  Developing and maintaining the historical record is the person’s responsibility.  This information may be kept by the producer, agrichemical industry representatives, certified crop advisors, or consultants.  Information must be made available to NRCS for use in conducting status reviews.

(3)  As long as the person's record shows the use of an acceptable HEL conservation system over a period of years, a deficiency occurring in a field in a single year will not be the sole basis for a noncompliance decision. 

520.2  Reinstatement Guidelines

A.  Reinstatement

(1)  Reinstatement may occur in any crop year after the crop year in which the person was determined by FSA to be ineligible.

(2)  A person is ineligible to receive benefits after a determination of “not applying” has been made.  Eligibility may be reinstated when the USDA participant revises the HEL conservation plan or system, or agrees to install the identified uncompleted practices before the end of the crop year for which benefits are requested.

 

B.  Responsibilities of USDA Participant

The USDA participant must request technical assistance for reinstatement purposes from NRCS to revise the HEL conservation plan or to plan an approved HEL conservation system. Further, the USDA participant must:

(i)  Agree to install all identified uncompleted practices before the end of the crop year in which benefits were requested, or agree to complete an approved conservation system by the end of the crop year;

(ii)  Sign the revised, approved conservation plan or approved conservation system; and

(iii)  Continue to apply and maintain all scheduled practices in the approved plan or system.

 

C.  NRCS Actions

After receiving a request from the person desiring reinstatement, NRCS will, within 45 days:

(i)  Provide technical assistance to revise the plan, plan an approved system, and install the required practice;

(ii)  Certify that the plan or approved conservation system meets FOTG requirements; and

(iii)  Obtain approval of the revised plan or system from the Conservation District. 

D.  Notification

(1)  When the revised plan or system has been approved, NRCS will notify FSA on Form NRCS–CPA–027 that the person is now considered to be actively applying the HEL conservation plan or system and is subject to a status review before the end of the crop year for which benefits are requested.

Note:  Enter the following statement on the Form NRCS–CPA–027:

(2)  "This NRCS–CPA–027 is effective beginning with the (specify year) crop year subject to a status review in that crop year."

Note:  Schedule and conduct a status review within the crop year for which the person requested reinstatement.

Note:  Conditions for reinstatement regarding wetland conservation provisions are set forth in Part 515.

520.3  Handling Reports of Possible Noncompliance

A.  Requirements and Sources

NRCS shall investigate possible noncompliance or deficiencies and document the findings (7CFR 12.30(a)(6)).  Sources of information about possible noncompliance or deficiencies are as follows:

(i)  Observations by NRCS or USDA employees.

(ii)  Referrals from FSA on Form FSA–569.

(iii)  Reports by the public (whistleblowers).

B.  NRCS Actions

When a whistleblower report is received from the public or a Form FSA–569 is received from FSA, take the actions required as set forth in the Parts 518 and 520.  When NRCS personnel observe possible conservation compliance deficiencies on HEL while providing technical assistance, take the actions specified in the Section 520.11.

 

C.  Report of Possible Noncompliance Register

Each office shall establish a "Report of Possible Noncompliance" register that shall include the following information:

(i)  Type of complaint (HELC, wetland)

(ii)  Tract number

(iii)  Tract owner or operator name

(iv)  Name of complainant

(v)  Date received

(vi)  Date report completed

(vii)  Details of the potential violation or noncompliance event

 

D.  Confidentiality of Reported Noncompliance

(1)  The name of a confidential source shall not be entered in the case file but should be maintained in the "Report of Possible Noncompliance" register.  Assume that the person who provided the report expects confidentiality unless specifically stated otherwise.  The following noncompliance report records are not available to the public: 

(i)  Register of Reports of Possible Noncompliance.

(ii)  Report of possible noncompliance provided to NRCS by a confidential source.

(2)  These records are protected under the Freedom of Information Act (FOIA), exemption 7(D).

E.  Final Report of Possible Noncompliance

(1)  A final report of the finding of the investigation and all documentation to support the finding will be placed in the case file that contains the tract(s) investigated.  The name of the confidential source must not appear in the final report nor shall the name appear as a reference in the case file.

(2)  The final report is available under FOIA.

F.  Monitoring Reports of Possible Noncompliance

Area- and State-level personnel should review the register and reports during quality control reviews.  The State Conservationist will inform the appropriate NHQ division director of major concerns.

520.4  Investigation Procedure

A.  When a Complaint is received

NRCS will:

(i)  Inform the person, organization, or agency that made the report (if known) that their report has been received and is under investigation; and

(ii)  Determine if a current Form AD–1026 has been filed with FSA for the tract and if the producer is a USDA participant for the current year.

·          If a current Form AD–1026 has not been filed for the site, do not investigate.

                         --  If the complaint involves a wetland or farmed wetland on land of a tract                               where Form AD–1026 has not been filed as determined by FSA, send the                               person a letter with copies to FSA, the State Conservationist, and the                               Conservation District (See Part 527).

·          If a current Form AD–1026 is on file with FSA, request Form FSA–569 from FSA, then:

                           --  Determine if the complaint is for HEL; if so, complete a compliance review                                 according to the policy set forth in Part 518.

                           --  Determine if the complaint is for a potential converted wetland; if so,                                 complete an investigation of the potential converted wetland according to                                 policy set forth in Part 514.

B.  Timing of the Investigation

(1)  Whistleblower complaints and/or requests for a compliance review referred to NRCS on Form FSA–569 shall be completed within the following time frames:

(i)  Within 30 days in a field office.

(ii)  Within 45 days in an Area or State office.

(2)  If the status of HELC/WC compliance cannot be completed as set forth in this manual, or the compliance review cannot be completed due to weather, time of the year, inability to assess the conservation system that was used to plant the agricultural commodity, inability to validate the vegetation, or inability to measure crop residues correctly, NRCS shall notify FSA in writing that a potential violation has been reported.  The notification shall include all known information regarding the potential violation and the reason(s) NRCS cannot complete the violation investigation at the time of the notification.

520.5  Preventing Fraud, Waste, and Abuse

A.  Introduction

There is the potential for the occurrence of fraud, waste, or abuse resulting from the HELC/WC compliance provisions unless all of the requirements for implementing and administering the provisions set forth in the statute (16 U.S.C. 3801 et seq.), regulation (7 CFR Section 12), and this manual are adhered to.

B.  Examples of Fraud, Waste, and Abuse

Fraud includes, but is not limited to, knowingly and willfully:

(i)  Entering false information into government records.

(ii)  Making an improper determination of eligibility for any conservation program.

(iii)  Reporting tracts as having HEL conservation plans or systems adequately applied when no plans or systems exist.

(iv)  Determining an HEL field to be NHEL or determining wetland to be non‑wetland.

(v)  Failing to report a finding of not actively applying or using an approved conservation system during a status review.

(vi)  Providing a minimal effect determination that does not follow established policy.

(vii)  Determining an area with woody vegetation to be prior converted cropland or farmland when it is not.

(viii)  Willfully allowing the 30-day time limit to expire on a request for temporary variances that involves the use of practices or measure to address weather, pest, or disease-related problems.

(ix)  Willfully not providing notification of the possible violations within the specified 45-day time period when the potential violation is found during the regular provision of technical assistance.

C.  Responsibilities and Action

All employees are responsible for understanding the correct actions to take when there is any suspicion of fraud, waste, or abuse.  The State Conservationist will ensure that each case where an employee is suspected of fraud is turned over to the Office of the Inspector General (OIG), Investigation Branch.

Note:  Each State shall supplement this section with the name and address of the appropriate regional OIG office.

520.6  Threats, Assaults, Harassment, and Bribery

A.  The Potential for Threats, Assaults, and Harassment

(1)  The potential for encountering a threat or assault is always present.  The performance of duties relating to the implementation of the HELC/WC provisions has increased the potential for employees to encounter threatening situations.

(2)  Threats, assaults, or harassment may occur in the field, in the office, over the telephone, by letter, or from a third party.  All incidents of threats, assaults, or harassment will be taken seriously by NRCS and will be dealt with appropriately.

B.  Employee Action

All incidents should be reported to the supervisor regardless of where it occurs or how insignificant it may appear.  Seek medical attention, if necessary.  A doctor's report may serve as evidence.  Notify the State Conservationist, the supervisor, the Conservation District, OIG, the Office of General Counsel field office, and other employees who might also be at risk.

C.  Employee Action Details

If an NRCS employee is threatened while providing technical assistance either in the office or in the field:

(i)  Remain calm and do not argue;

(ii)  Ask the person to leave the office or leave the scene as quickly as possible;

(iii)  Call the local law enforcement authorities if the person refuses to leave or persists in making threats; and

(iv)  Prepare a written report on the incident as set forth in Section 520.6(D).

D.  Report Requirements

(1)  Prepare an accurate written report on all threats, assaults, or harassment that includes:

(i)  Stating events that led to the incident.

(ii)  Describing the incident in detail.

(iii)  Using direct quotes whenever possible.

(iv)  State facts and avoid supposition.

(v)  Include statements from witnesses whenever possible.

(2)  Contact local law enforcement authorities and file charges as appropriate.

E.  Suspend Technical Services

Suspend technical services until the threat to employees has been removed to the satisfaction of the State Conservationist.  The State Conservationist shall:

(i)  Inform the person, in writing, that technical services are withdrawn; and

(ii)  Send copies of the letter to the Area Conservationist or designee and District Conservationist.

F.  Status or Quality Reviews

Take action according to this table if a threat or assault resulted during a status or quality review.

IF an incident occurs...

THEN...

And the status or quality review was completed on a tract,

Complete the review documentation and follow policy as set forth in Sections 520.6(D) and 520.6(E).

And an NRCS employee was prevented from making or completing the status or quality review,

Request FSA to issue an Form FSA–569.

NRCS will report the tract as not meeting the requirements of the HELC/WC provisions due to being prohibited/prevented from entry or prohibited/prevented from completing required reviews according to the regulation.

G.  Definition of Bribery

(1)  Bribery is the offering, giving, receiving, or soliciting of anything of value to influence an official act of an employee.

(2)  Bribery or attempted bribery of NRCS employees is a serious violation of Federal law and is punishable by prison terms and fines.  Bribes may be:

(i)  An offer of money or anything else of value in excess of $20.00; or

(ii)  Offered directly or indirectly and/or subtly or unsubtly.

 

H.  Employee Responsibility

(1)  Employees must be perceptive and alert in recognizing bribes and report them immediately.  Employees are not to report bribery or attempted bribery through normal administrative channels.  If a report of bribery or attempted bribery is given to an employee, he or she is not to discuss it or attempt to investigate it.

(2)  Employees who are offered a bribe or who believe that a bribe was offered to, solicited by, or accepted by another employee are to immediately report the incident directly to the appropriate regional OIG.

(3)  The State Conservationist shall supplement this sub-paragraph to include the address of the appropriate regional OIG.  Employees are also to report situations in which, although a direct offer is not made, the employee feels that an offer of a bribe could be inferred.

I.  Supervisor Responsibility

Supervisors who receive bribery information not previously reported must report it to OIG immediately.

520.7  Incorrect Information by a Person

A.  Incorrect Information

(1)  If NRCS suspects that a person has knowingly supplied incorrect information, review the information with the person prior to taking action according to this paragraph.

(2)  Incorrect information includes the following:

(i)  Not providing information on Form AD–1026;

(ii)  Providing incorrect information on Form AD–1026; and

(iii)  Providing other inaccurate or incorrect information.

B.  NRCS Actions

If NRCS confirms that incorrect information has been provided, NRCS will:

(i)  Suspend any further services to the person;

(ii)  Inform the person and FSA of the finding and action needed to correct the information; 

(iii)  If a potential violation exists, request Form  FSA–569 from FSA;

(iv)  Document the findings in a letter to the State Conservationist with a copy to FSA and the person; and

(v)  Place a copy of the letter and Form FSA–569 in the person's case file.

C.  Resume Services

Services may resume when the person provides correct information.

[M_180_NFSAM_520_A - Fifth Edition - November 2010]

Subpart B - Handling HEL Compliance Deficiencies, Exemptions, and Variances


520.10  Introduction

A.  Exemptions

The 1985 Food Security Act, as amended, provides for the following exemptions from the HELC or the WC provisions, or both:

(i)  Deficiency found while providing technical assistance (HELC).

(ii)  Good-faith exemption (HELC and WC).

(iii)  Sodbuster — Small acreage exemption (HELC).

(iv)  Relief for undue economic hardship (HELC).

B.  Variances

The 1985 Act, as amended, provides for the following variances from the HELC provisions:

(i)  Variance for a minor technical violation that has little effect on the erosion control purposes.

(ii)  Variance when special conditions, including weather, pests, or disease exist.

(iii)  Variance for extreme personal hardship.

C.  Authority for Granting Exemptions and Variances

Sections 1212, 1213, 1215, and 1222 (16 U.S.C. 3812, 16 U.S.C. 3814, and 16 U.S.C. 3822(b)) of the Food Security Act of 1985, as amended, provides the authority and criteria under which USDA agencies (FSA and NRCS) may grant variances or exemptions from potential violations or situations of noncompliance with the HELC or WC provisions.

D.  Criteria for Granting Variances

The State Conservationist may delegate authority for granting variances to other NRCS conservationists if the following procedures have been established:

(i)  State criteria have been established for granting variances, including requirements for documentation, and a State supplement to the NFSAM has been issued.

(ii)  Training on all variances and the specific criteria has been provided to the NRCS employees given the delegated authority.

E.  Review and Follow-up After Granting Variances and Exemptions

(1)  A compliance review shall be required for every tract provided with a variance or exemption from the HELC or WC provisions in the previous year (Section 518.1(C)) to determine the following information:

(i)  If the reason for the variance has been alleviated.

(ii)  If the producer is using an acceptable conservation system.

(2)  A complete compliance review does not need to be repeated unless the need to do so is determined by the local conservationist or the tract is again randomly selected for a compliance review.

520.11  HEL Compliance Deficiencies Found While Providing Technical Assistance

A.  Notice and Investigation of Potential HELC Deficiencies

The Federal Agriculture Improvement and Reform Act of 1996 (Public Law 104–127, 110 Statute, Section 315(1)) set forth provisions at 16 U.S.C. 3814 that make available an exemption from the HELC provisions if the following criteria are met:

(i)  A potential HELC violation has been observed by a USDA employee while providing technical assistance.

(ii)  The technical assistance being provided to the USDA participant when the violation has been observed does not involve an official compliance review of HELC or a whistleblower investigation.

B.  The 45-Day, One-Year Rule

If a USDA participant is found to be out of compliance with the HELC provisions, the NRCS employee that has observed the potential violation shall:

(i)  Provide notification of the nature of the violation and technical assistance in the form of the conservation treatment needed to be in compliance with the HELC provisions within 45 days of the violation having been found.

(ii)  If the USDA participant signs an HEL conservation plan developed by NRCS for the purposes of complying with the HELC provisions, NRCS shall provide sufficient time in which to apply the needed treatments of the HEL conservation system, not to exceed one year from the date the HEL conservation plan is signed by all parties.

(iii)  Inform the participant that the tract found in violation of the HELC provisions will be reviewed the following year to ensure that the HEL conservation system is being fully implemented.

C.  Situations Not Considered as Routine NRCS Technical Assistance

The following situations do not qualify as “providing onsite technical assistance” for the purposes of this exemption:

(i)  Conservation compliance reviews.

(ii)  Whistleblower complaint investigations.

(iii)  Requests for determinations by FSA because the producer certified compliance on Form AD-1026 and FSA has reason to believe the person did not meet HELC requirements.

(iv)  Requests from other Federal agencies.

D.  NRCS Action Required

(1)  NRCS will:

(i)  Within 45 days after observing a potential HEL compliance deficiency while providing routine technical assistance, provide the USDA participant with information as to the actions or practices needed to be in compliance with the HELC provisions. 

(ii)  Not request an Form FSA-569 unless the participant has refused to agree to an HEL conservation plan or fails to apply the required HEL conservation system within the required time frames.

(2)  Guidance is provided in the following table for granting this exemption from the HELC provisions:

IF the person...

AND the deficiency...

THEN...

Agrees to correct the deficiency within the time schedule, and signs the plan within 45 days,

Is corrected or the system is fully implemented within one year of the violation notification,

FSA will not be informed of the potential violation unless a Form FSA–568 has been referred due to a prior year violation on the tract(s).

Note:  NRCS will not request a Form FSA–569 unless the agreement requirements are not met.

Is not corrected or the system is not fully implemented within one year of the violation notification,

Request an FSA–569 from FSA and mark Part C “does not meet” the requirements of the HELC provisions.

Does not agree to correct the deficiency,

 

Immediately request Form FSA–569 and mark Part C “does not meet” the requirements of the HELC provisions.

E.  Limitations for the Use of This Variance

The use of this variance is not approved when performing compliance reviews or whistleblower investigations.

520.12  Good Faith Exemptions

A.  Good Faith Exemptions

Persons who violate the HELC or WC requirements may regain eligibility for USDA program benefits as shown in the following tables:

HELC:

IF FSA determines…

AND the person(s)

THEN NRCS will…

The person acted in good faith without intent to violate,

Agrees, within 45 days, to implement the needed practices or system within an agreed upon period, not to exceed one year,

Provide information to FSA on Form AD-1068, Part B (and Part C if the violation is sodbuster).

 

A compliance review of the tract will be required in the year following the granting of the good faith exemption.

 

Agrees, within 45 days, to implement the needed practices or system, but does not implement the approved plan or system within one year,

Report the failure to comply with the HELC provisions on Form FSA-569 and return the form to FSA for further action.

Does not agree to implement the needed conservation practices or HEL conservation plan or system,

Report the failure to comply with the HELC provisions on Form FSA-569 and return the form to FSA for further action.

WC:

IF FSA determines…

AND the person(s)

THEN NRCS will

The person acted in good faith without intent to violate,

Agrees to implement the measures and practices necessary to be considered actively mitigating the wetland, either onsite or off-site, within a reasonable period of time, not to exceed one year,

Provide information to FSA on Form AD-1069, Part B.

 

A compliance review of the tract will be required in the year following the granting of the good faith exemption.

Agrees to implement the measures and practices necessary to be considered actively mitigating the wetland, either onsite or off-site, within a reasonable period of time, but does not implement the measures or practices within one year,

Report the failure to comply with the WC provisions on Form FSA-569 and return the form to FSA for further action.

Does not agree to implement the measures and practices necessary to be considered actively mitigating the wetland, either onsite or off-site,

Report the failure to comply with the WC provisions on Form FSA-569 and return the form to FSA for further action.

B.  Additional information concerning good faith determinations for wetland conservation compliance violations is located in Section 515.30.

C.  Graduated Payment Reductions (GPR)

(1)  Form AD-1068 provides the GPR amounts for HELC and sodbuster violations.  The amounts are based on a combination of the Erodibility Index (EI) and the Soil Loss Tolerance (T) Value.

(2)  GPRs do not apply to WC violations.

D.  NRCS and Conservation District Role in Good Faith Exemptions

NRCS, in consultation with the Conservation District, will provide the following information to the FSA County Office Committee (COC) on Form AD-1068:

(i)  Any facts about the case that may affect the COC determination.

(ii)  Copies of documents containing pertinent information related to the case that provides facts and details that may affect the COC’s good faith decision, such as NRCS notification to the producer regarding the determination.

(iii)  Whether the producer has obtained or has attempted to obtain a conservation plan for the farm in a timely manner; whether there was any face-to-face discussion with the producer concerning the HELC or WC violation, and the nature of the discussion.

(iv)  Whether the landlord attempted to work with NRCS in developing a conservation plan that could be actively applied by the producer.

(v)  Information concerning the fields in violation, including the EI and T value.

E.  FSA Review

The 1985 Food Security Act, as amended, requires that all good faith determinations made by the COC be reviewed by the FSA State Executive Director (SED).  The FSA SED may delegate their approval authority to the FSA District Director. 

F.  NRCS Technical Concurrence

(1)  The 1985 Food Security Act, as amended, requires that all good faith determinations made by the COC be forwarded to the State Conservationist for technical concurrence (7 CFR Section 12.5(a)(5)).  The State Conservationist may delegate their responsibility for technical concurrence to the Area Conservationist or equivalent position.

(2)  The determination of technical concurrence will be based upon:

(i)  A review of the proposed conservation/wetland restoration plan to ensure that it achieves the required outcome.

(ii)  A review of the factors used to determine the GPR for HELC violations.

(3)  If the NRCS State or Area Conservationist or equivalent position does not provide technical concurrence, the conservation plan or the determination of applicable GPR factors shall be returned to the District Conservationist for technical corrections.

520.13  Tenant (Other Producer) Exemption

A.  Tenant (other producer) Exemption

(1)  Tenants may not be subject to loss of all benefits on other tracts if the tenant makes a good faith effort to apply a conservation system and the landlord:

(i)  Will not document an approved conservation system in a conservation plan, or will not allow the tenant to install conservation measures or management practices.

(ii)  Imposes terms and conditions that prevent the implementation of a conservation system.  [7 CFR Section 12.9(b)]

(2)  FSA is responsible for determining when this exemption applies.

B.  Tenant Exemption Procedures

(1)  FSA will refer tenant exemption requests to NRCS on Form AD–1026B.

(2)  Upon receipt, NRCS will complete the items in Form AD-1026B, Part B, and return the form to FSA.  Form FSA–569 should be completed to show the tract as “not actively applying” the plan.  The FSA COC will use the information to make a person (tenant or renter) exemption determination.  Below are the items to be completed by NRCS:

Item

Requested Entry

11

If the landlord has a plan, or if the person had a plan in a timely manner but was not allowed by the landlord to install practice(s), mark “Yes” and complete questions 12 and 13 based on the landlord’s decisions.

12

Structural measures that are required by the plan that have not been applied.

13

Planting practices that are required by the plan.

14

Signature by District Conservationist and date.

(3)  When Form AD–1026B, Part B, is completed, NRCS will return the form to FSA to make the exemption determination.

C.  NRCS Procedures

NRCS will:

(i)  Provide the person information, within 45 days of establishing that a conservation system is not being applied, regarding actions needed to comply with the HELC provisions.

(ii)  Help the tenant apply conservation measures and management practices from the landlord's conservation plan that are practical for the tenant to apply.

(iii)  Help the tenant apply conservation measures and management practices in the conservation plan or system covering other highly erodible tracts.

(iv)  Help the tenant develop conservation systems on other tracts.

(v)  Help the tenant apply the conservation practices and management measures from the conservation system.

(vi)  Follow appeal procedures in 440-CPM, Part 510.

(vii)  Complete Form FSA–569.

(viii)  Complete Part B of AD–1026B and return to FSA.

Note:  The tract in question should be flagged "not actively applying" according to FSA procedures.

520.14  Other Exemptions

A.  Small Area Exemptions

(1)  The small area exemption applies to converted, small, non-cropland areas such as abandoned farmsteads, areas around filled or capped wells, rock piles, trees or brush, etc., within or adjacent to existing fields that are converted to cropland.

(2)  These areas must be included in a plan or system for adjacent HEL fields and must meet the level of treatment required for such fields.

(3)  NRCS makes this determination on a case-by-case basis.

B.  Two-acre Noncommercial Cropland Exemption

Areas of two acres or less are exempt from the HELC requirements if used for the non-commercial production of an agricultural commodity, and FSA determines this production is not intended to circumvent the HELC requirements otherwise applicable (7 CFR Section 12.5(a)(4)).  An example of this exemption is a home garden.

C.  Sodbuster Interseeding Exemption

(i)  The interseeding of close-grown crops into existing sod for grazing, haying, or silage shall not be considered planting an agricultural commodity.

(ii)  NRCS will make the exemption determination.

520.15  Variance for Special Problems, Including Weather, Pests, or Disease

A.  Description of the Temporary Variance

A temporary variance from the practices specified in the person’s HEL conservation system  involving the use of practices or measures to address weather, pest, or disease problems, may be granted (Section 512.20) (7 CFR Section 12.5(a)(6)(i)(C)).

B.  Requirements for the Variance

(1)  Requests for this variance will be supported by documentation of the extent and effect of the special conditions, as related to:

(i)  Weather

(ii)  Pests

(iii)  Diseases

(2)  These special conditions will usually involve:

(i)  More than one tract in a county

(ii)  Several counties in a State

(iii)  One or more States in the area or region

C.  NRCS Response

(1)  The NRCS representative shall respond, in writing, within 30 days of receipt of the request for the variance as to approval or disapproval.

(2)  If NRCS fails to respond within the 30-day period, the variance becomes automatic, unless the person had reason to know the variance would not be granted (i.e., a request for the variance based on excessive rain, when county rainfall records for the period cited in the request show a less than normal rainfall).

(3)  If the NRCS representative has reason to believe the request for the variance is not justified, or the documentation submitted was not sufficient to indicate the existence of a special problem, a standard letter will immediately be sent to the person requesting the variance, stating more time will be required to process the request due to insufficient information provided.

D.  NRCS Action

(1)  NRCS, in consultation with the Conservation District at the local level, will review the requests for the variance, in comparison with the known local conditions and factors. 

(2)  The following factors shall be considered:

(i)  Incidence of crop disease in the area.

(ii)  Percent of stand damaged or destroyed.

(iii)  Percent of expected crop production compared to normal production.

(iv)  Documentation of weed or insect infestations.

(v)  Comparison of weather event to historical records.

(vi)  Documentation of severe weather conditions.

(vii)  Other special circumstances that prevented the implementation of conservation practices or systems, installation of structures, or planting of cover crops.

E.  Steps for Granting the Variance

The following table provides the procedure to be used if a producer requests this variance.

Step

Action

1

District Conservationist will receive written and dated requests for a variance at the field office.

Field offices will date stamp the request upon receipt.

2a

District Conservationist will notify the State Conservationist of requests received.  Where area offices exist, notification should be directed through that office.

2b

If it is determined that sufficient documentation was not presented to support the request for variance from special weather, pest, or disease conditions, the District Conservationist  will send a letter stating that more time will be needed to grant the request.

3

District Conservationist will notify the Conservation District upon receipt of the variance requests.

4

District Conservationist will assemble the producer’s documentation on the need for a variance request.

5

The variance request shall be granted, if the criteria developed by the local review group and as reviewed by the State Technical Committee have been met.

6

The State Conservationist will determine if the need for the variance is regional in scope, and will coordinate the use of the variance with the adjacent States.

7

All variances granted for this purpose will be fully documented.  All tracts granted this variance will be placed on the following year’s compliance review list.

F.  Limitations for the Use of this Variance

The use of this variance is limited as follows:

(i)  May be used only when application of the conservation system is prevented due to severe weather, crop pest infestations, or crop diseases;

(ii)  May not be used when there has been NRCS error or untimely provision of technical assistance; and

(iii)  May only be used if the following documentation exists:

·          For specific farm/tract requests, the information included in 520.15(E) (above) must be included in the case file; or

·          For area-wide, county-wide, or State-wide variances, the disaster, special problem, weather- or pest-related problem must have been a declared disaster either by FSA, the Governor of the State, USDA, or the President.

520.16  Variance for a Failure of a Technical and Minor Nature

A.  Technical and Minor Deficiencies

(1)  A compliance deficiency is considered technical and minor in nature if it has little effect on the erosion control purposes of the conservation plan or system (7 CFR 12.5(a)(6)(i)(A)).

(2)  Deficiencies can be:

(i)  Failure to apply one or more practices according to the FOTG; or

(ii)  Failure to maintain one or more previously applied practices.

B.  NRCS Action

(1)  This table provides guidance for providing assistance on deficiencies considered technical and minor in nature. 

Step

Action

1

Document which practices do not meet criteria in the FOTG.

2

Determine and document the impact of the failure on application of the practice/system.

3

Document in the case file any previously applied practices needing maintenance that are still serving the intended purpose.

4

Work with the person to revise the plan/system to more suitable practices or to perform the needed maintenance.

5

Notify the person that he/she will need to certify correction of the deficiencies within one year, and the tract will be placed on the following year’s compliance review list.

(2)  This variance is granted by the NRCS District Conservationist.

C.  Limitations for the Use of This Variance

The use of this variance is limited as follows:

(i)  May be used only when the deficiency is minor.

(ii)  May not be used when there has been NRCS error or untimely provision of technical assistance.

(iii)  May not be used when a farmer or rancher voluntarily changes a conservation system in place.

(iv)  Must be used with great infrequency, (i.e., only for new farmers/ranchers or farmers/ranchers with land coming out of CRP).

520.17  Variance for Personal Hardship

A.  Description

A variance may be granted when a special problem, such as a technical error or incorrect plan, extreme personal hardship, or unusual occurrence prohibited application of the required planned practice(s). This variance is a specifically identified problem unique to that person including:

(i)  Severe physical condition;

(ii)  Death of the farm operator or family member that prevented the application of the scheduled practices;

(iii)  Destruction of a building or equipment by fire or similar situation; or

(iv)  NRCS error that prevented the person from applying the practice.

B.  NRCS Action

(1)  The following table describes actions to be taken for making a personal hardship variance determination.

Step

Action

1

District Conservationist will obtain person’s supporting data and request variance from the State Conservationist.

2

All decisions for this variance will be made on a case-by-case basis.

3

Document decision in the case file.

4

If granted, inform the person that he/she will be required to implement the system within a year, and the tract will be added to the following year’s compliance review list.

(2)  NRCS will grant this variance.

C.  Limitations for the Use of This Variance

The use of this variance is limited as follows:

(i)  If for the physical condition of the principal farm operator or destruction of buildings and equipment, there must be sufficient documentation placed in the case file to support the need for the variance; or

(ii)  If for NRCS error or untimely provision of technical assistance, there must be sufficient information provided in the case file to support the need for this variance as follows:

·          The farmer or rancher applied for technical assistance in sufficient time for NRCS to provide the assistance.

·          The farmer or rancher does not have sufficient knowledge of what was needed in the conservation system to be in compliance with the HELC provisions.

·          There have been no previous uses of this variance for the same reasons.

[M_180_NFSAM_520_B - Fifth Edition - November 2010]